Masterarbeit, 2014
58 Seiten, Note: B
Jura - Europarecht, Völkerrecht, Internationales Privatrecht
Chapter 1. Introduction
1.1 Scope
1.2 Outcome
Chapter 2. The role of EU, its purpose and effects on the UK’s legal system
2.1 The EU - European Community - European Communities
2.2 The accession of the UK to the EU
2.3 Historical development of the European Community and European Community law
2.4 The nature of the EU
2.5 Supremacy of the EU
2.6 Supremacy of the EU over the UK
Chapter 3. The EU assisted the UK for the better
3.1 EU supremacy assisted the UK for a greater and stronger EU internal market
3.2 The EU’s effect on the UK
3.3 The procedure to withdraw from EU membership
3.4 The UK’s Options
3.5 The effect of leaving the EU on businesses in the UK
3.5.1 Argument against the withdrawal of the UK
3.5.2 Argument for the withdrawal of the UK
3.5.3 An alternate option
3.5.4 Impact on the world
Chapter 4. The separation of the UK from the EU
4.1 The withdrawal process
4.1.1 The EU and UK withdrawal agreement
4.1.2 Implementations of the withdrawal agreement in the UK
4.1.3 The rights of businesses and individuals - follow the Greenland example
4.1.4 The EFTA or EEA as an option
4.1.5 Define the EFTA and EEA
4.2 The Norwegian or Swiss model
4.2.1 Norwegian Model
4.2.2 Swiss Model
4.2.3 A renegotiation of terms
4.2.4 Conclusion
Bibliography
The European Union (‘EU') is based on the rule of law[1][2][3]which means that any action taken by the EU is initiated via the Treaties that have been approved ‘voluntarily and democratically1 by EU Member States. Thus by contrast should a particular policy area not be cited in any Treaty, the European Commission cannot propose a law in that area[4].
A Treaty is defined as a binding agreement between EU Member States. It sets out EU objectives and rules for EU institutions, and it contains the principles on how decisions are made and the relationship between the EU and its Member States.
As time develops countries and policies develop. Subsequent to that, Treaties are amended to make the EU more efficient and transparent, to prepare for new Member States and to introduce areas of cooperation, for example in currency and trade[5]. Thus, for example, the
‘FT'[6]would have to be amended to include Member States and any subsequent changes when a new Member State joins the EU[7].
Under the Treaties[8], EU institutions can adopt legislation, which the Member States then implement within their own legal systems.
Europe can no longer be described thriving economic club that Britain joined 40 years ago. It is no secret that the euro-zone has suffered an economic crisis giving way to a lack of dynamism between Europe and Britain. As countries are brought closer together sharing a single currency it leaves the British feeling insecure about the uncontrolled immigration issues and single EU market demands. According to recent political news[9][10], political leaders are determined to stop a UK exit however there are mixed views as to the UK's position .
While the possibility of a UK exit exists, UK politicians are of the opinion that this relationship is a commitment - a likeness to that of marriage - and it should be left alone to develop with all partners contributing to the process given that a UK withdrawal could be viewed as being counter-productive.
The EU relationship is based on Treaties, and the terms and conditions of the relationship, like any union, allow for a Member State's commitment to be broken[11]. The terms and conditions of an EU relationship set out objectives, rules and guidelines as to legislative decisions that are relative to the relationships forged between the EU and those subsequent relations between Member States.
This inadvertently means that Member States allow for a ‘cooperative ' aspect on matters such as home affairs, justice (pillar 3) and territory[12][13]between themselves, thereby promoting EU rights of cross-border trade[14]and freedom of movement[15]. However there is always the risk that should one of the Member States feel threatened by an influx of trade from foreigners, there could be a need to withdraw from said Treaties.
Cooperation, by example, between Member States for consumer protection, deals with the issue of cross-border purchases whereby consumers are protected against the odd chance of rogue traders. This cooperation between Member States was put in place to ensure the application of legislation on consumer protection within the internal market was effective enough to avoid future problems[16]. An example of this cooperation was found in the preamble to the Rome Treaty wherein it was mentioned it would have an ‘ever closer' union amongst the undersigned parties[17]. UK politicians, however, took an adverse stand to the
statement and confirmed that the treaty only ensured certain key areas of practical cooperation, such as trade[18].
While joining the EU was for the economic benefit, there were also political benefits. Perhaps it would be better suited for the UK to be outside the EU while still participating politically similar to that of Norway, or Switzerland, whether in the UN, NATO, the WTO, the IMF or simply in specific multilateral and bilateral relationships[19]. It would be most beneficial for its economy however if the UK instead stayed within the EU but altered its terms and conditions of membership. This would guarantee its protection for the freedom of movement of goods under Article 35 of the TFEU. For example, in the case of Cassis de Dijon[20]the CJEU established the principle of mutual recognition whereby goods from domestic and foreign traders that are produced and manufactured lawfully by a Member State should circulate freely within the Union without hindrance. The CJEU found that imported goods should not be modified to a host country's requirements and deemed such measures as being unlawful because they are likely to incur unnecessary expenses.
However if the UK does not decide to stay, much has to be considered for the UK to withdraw. Factors such as the economy, trade, ease of movement, and the legal aspects of the legal system being affected by EU-supremacy will be discussed in order to ascertain the conclusion of the UK's status from here on end.
While the Factortame I case held that EU law is supreme within the UK[21], the question to be answered, however, is to what extent is its supremacy powerful enough to dissuade the UK from leaving and would this be to its advantage from an economic and political perspective. Thus the scope of this thesis will formulate an opinion of the EU's supreme part within the UK and the effect it has had on the country and its legal system. The question of the EU's supremacy and integrity of its relationship with the UK as it plans to ‘separate' itself from a once happy EU marriage will also be considered. A conclusion will be reached as to whether it is viable for the UK to be a part of the EU and the pros and cons to its existence within the EU as compared to that of its counterparts[22].
A research report by the House of Commons, Foreign Affairs Committee[23]has suggested that the UK would be better placed having an European Economic Area (EEA)-like relationship and should take note of the following points:
1. The UK should leave the EU's protective agreements altogether inter alia, tariffs and anti-dumping and resume a unilateral free trade agreement. While this would put the UK outside the EU's protective arrangements, it would have the same access to the EU market as any WTO non-EU member. EU members would have the same free access to the UK market as any EEA member.
2. Where services are concerned, (the UK which already has a large free trade and free market entry), the Single Market could bring about competition and the UK can participate in such discussions and cooperate on a case-by-case basis to create new agreements.
3. The UK should continue with the arrangement of having the freedom of movement of capital, labour, goods and services given that this arrangement has brought about benefits.
4. The UK should continue to participate in all areas concerning competition policy, economic consultations, and coordination of anti-terrorist policies.
5. Lastly, the supremacy of EU law would no longer be enforceable upon the UK neither will it be binding. In that event, it would be more convenient that only those agreements that are explicitly made with the EU as any treaty obligation, be respected and incorporated into UK law.
The role of EU, its purpose and effects on the UK’s legal
SYSTEM
The EU has been described as a distinct economic and political organization of 28 democratic European countries. It became the EU in 1993 and when the Treaty of Lisbon entered into force on 1 December 2009, the EU then replaced the European Community which had existed since 1958, and took over all remaining duties, rights and obligations[24].
The EU's roots stem from the European Communities. The European Communities, which is originally referred to as the European Economic Community (‘EEC') and the European Atomic Energy Community (‘Euratom'), were both formed in 1958, while the European Coal and Steel Community (‘ECSC'), was formed in 1952[25].
The European Union was created by the Treaty of Maastricht in 1992 and the Treaty of Amsterdam 1997[26](both are commonly referred to as the Treaty on European Union (TEU)). It consisted of three pillars: the community dimension (EEC/EC, ECSC, Euratom), the common foreign and security policy, and a common cooperation in the field of justice and home affairs. The European Economic Community was renamed the European Community. It covered certain policy areas of the EU, such as Union citizenship, Community policies and Economic and Monetary Union (EMU).
In 2009, by way of the Treaty of Lisbon, the three-pillar structure was abolished and the European Community was absorbed by the EU[27].
While the Euratom continues to exist as a legally distinct entity from the EU, the Euratom and the EU, however, have an equal number of member states and share the same institutions. It acts in several areas connected with atomic energy, including research, the drawing up of safety standards, and the peaceful uses of nuclear energy. The European Coal and Steel Community ceased to exist in 2002, when the ECSC Treaty expired[28].
It should be noted however that when it comes to the power of making law, the EU has no law making powers outside those conferred by the founding treaties of the European Community, however for the purpose of this research paper the phrase ‘EU law' will be used interchangeably with Community law or European Community law (‘EC law').
The UK joined the EU via, the Treaty of Accession 1972 (‘TA'), an agreement between the European Communities and four countries (Denmark, Ireland, Norway and the United Kingdom)[29][30]. The TA entered into force on 1 January 1973 thereby allowing the aforementioned countries to obtain accession to the European Community and this became an important part of the constitutional grounds of the EU . On reflection, it was from this point that the EU (or as it was known then, the European Communities) had taken on the position of becoming a supreme authority in the eyes of the UK.
At first, the UK was seen to have no interest in joining the European Community in 1957. Instead, it went ahead with setting up the European Free Trade Area (‘EFTA’) with Austria, Denmark, Norway, Portugal, Sweden and Switzerland[31][32]. While this manoeuvre could have been viewed as a defensive move by European States, not in the EEC at the time, all of the original members of EFTA with the exception of Norway (due to a public referendum held to not join the European Community) became members of the European Community (now the EU). However, after four years, the UK decided to change its policy and proceeded to apply for membership but France blocked the application for just over 10 years. Then, in 1972 the UK signed and ratified the Treaty of Accession .
The nature of the European Community is founded on the Treaty of Rome which insists on its provisions being enforced by the legal systems of Member States. The UK had to adopt parts of the Treaty into English law through the enactment of the European Communities Act 1972[33].
The idea for the Member States coming together under one ‘umbrella' was primarily based on the usefulness of obtaining an economic unity[34], that is the EU, to forge a greater political and social community[35]. The desire for a broader EU area was initially based on a need for materials, movement of people, goods and trade. This need was placed on agenda and advanced by the Single European Act 1986 which secured the economic future for a single currency — the euro.
The EU was created in 1992 by the Member States of the European Community concluding the TEU 1992, (also known as the Maastricht Treaty). This Treaty, vis-à-vis the Union, has an international level of operation; however, it does not affect any of the legal systems of Member States. But should the EU operate, through its institutions, within the legislative capacity of the European Community, those actions do have an effect on the legal systems of Member States[36][37].
To explain further, if an area within the broader spectrum of the EU were to require defined perimeters to be embedded into the Member States' legal systems of the European Community, then and in that event, an agreement facilitating a move of matters from the EU into the sphere of legal competency of the European Community would have to occur. For example, an agreement had to be made between Member States of the EU to co-operate on matters of home affairs and justice (pillar 3) to be moved into the legal competency of the European Community so that it could become the subject of law making processes that was effective within the legal systems of Member States .
The main principle of the Treaty of Rome 1957 was to maintain a common economic and social progress towards a unified system. From this principle follows a series of other principles which are aimed at uniting the Member States for a greater more established purpose of social, economic and legal union. The Treaty specifically provides that it is aiming to lay ‘the foundations of an ever closer union'[38].
It should be remembered that the EU is not a designated geographical place, but rather an area for the purposes of Member States trading and relating financially, legally, politically, socially and culturally with one another. It could be said that the Community is a designated invisible market place, for a people who are united in their differences[39].
With the introduction of the EU came the idea of an established more specific supra-national legal and political order that each Member State agreed to be part of and bound by. In so agreeing, some aspects of sovereign rule within a Member State would need to be subject to the decisions of the supreme European legal and political institutions[40]. While the UK has anxiety as to its principle of sovereignty being subordinate to the EU (as will be explained below), each Member State in the EU remains separate, and this is an accepted state of fact within the wider group of the European Union[41].
As explained above, the Member State is a separate entity but unified under the umbrella of the EU. Thus while the principle of supremacy of Community law over national law in the Member States is an unwritten one, no Treaty has expressed that Community law should take precedence over national law neither is it a principle that was endorsed by any subsequent Treaty amendments. The Treaties are therefore said to be silent on the issue of the relationship between conflicting national law and Community law. However, it is an important part of the legal order of the EU[42].
The CJEU persists with its decision of complete supremacy of EU law over national law[43]. Craig & De Burca[44][45]explain that “the aim of creating a uniform common market between different states would be undermined if Community law could be made subordinate to the national law of various states ”. While the principle of supremacy is an unwritten rule of Community law and does not apply to the second and third pillars of the EU[46][47], it has evolved through the jurisprudence of the ECJ via case law.
In Internationale Handelsgesellschaft mbH v. Einfuhr - und Vorratsstelle fur Getreide und Futtermittelthe47 (‘Internationale Handelsgesellschaft’), the ECJ held that EU law must take precedence over any conflicting domestic law of Member States and decided that the validity of a Community measure or its effect within a Member State cannot be affected by any allegation that it opposed fundamental rights or principles that were formed via the constitutional law of that Member State[48].
This however has created clashes between Community law and national law, as will be explained below.
To explain the phenomenon of supremacy of EU laws over a Member State's national laws, the following questions are considered: 1) When a Member State becomes a said member of the EU and international conventions (which create new EU laws), is it possible to ratify such a convention when it contains those rules which would then contravene the Member State's Constitution; and 2) When the Member State has ratified such international convention and its EU laws, can the Member State's Constitution have supremacy over these EU laws.
[...]
[1]Prof Weiler, ‘The Rule of Law as a Constitutional Principle of the European Union Jean Monnet Working , Paper 04/09, < www.jeanmonnetprogram.org/archive/papers/09/090401.doc>
[2]The ‘Treaties’: Treaty of Lisbon, (signed: 13 December 2007, entered into force: 1 December 2009); Treaty of Nice, (signed: 26 February 2001, entered into force: 1 February 2003); Treaty of Amsterdam (signed: 2 October 1997, entered into force: 1 May 1999); Treaty on European Union - Maastricht Treaty (signed: 7 February 1992, entered into force: 1 November 1993); Single European Act (signed: 17 and 28 February 1986 (in Luxembourg and The Hague respectively), entered into force: 1 July 1987); Merger Treaty - Brussels Treaty (signed: 8 April 1965, entered into force: 1 July 1967); Treaties of Rome - EEC and EURATOM treaties (signed 25 March 1957 and entered into force: 1 January 1958); Treaty establishing the European Coal and Steel Community (signed: 18 April 1951, entered into force: 23 July 1952 - expired 23 July 2002).
[3] Prof J.H.H. Weiler, ‘The Rule of Law as a Constitutional Principle of the European Union’ Jean Monnet, Working Paper 04/09, www.jeanmonnetprogram.org/archive/papers/09/090401.doc>
[4]Ibid
[5]Prof J.H.H. Weiler, ‘The Rule of Law as a Constitutional Principle of the European Union’ Jean Monnet Working Paper 04/09, www.jeanmonnetprogram.org/archive/papers/09/090401.doc>
[6]The Founding Treaties (‘FT’) being Treaty establishing the European Coal and Steel Community (1951); Treaty establishing European Economic Community (1957); Treaty establishing the European Atomic Energy Community (1957); Treaty on European Union (1992).
[7] EU Union, ‘EU Treaties ’ <http://europa.eu/about-eu/basic-information/decision- making/treaties/index_en.htm> (accessed on: 17/2/2014)
[8] Ibid and footnote 2 above
[9]A. Kaletsky, ‘Will Britain leave the European Union’ Reuters, (16 Jan 2014) <http://blogs.reuters.com/anatole-kaletsky/2014/01/16/win-britain-reany-leave-the-european-union/>
[10]Britain and Europe: Making the break, The Economist (8 Dec 2012) http://www.economist.com/news/briefing/21567914-how-britain-could-fan-out-european-union-and-what-it-would-mean-making-break>
[11]As provided for in terms of Article 50 of the Lisbon Treaty
[12]Summaries of European Legislation, ‘Treaty of Maastricht on European Union’ (2010): The Maastricht Treaty has a complicated structure wherein its preamble is sets out seven titles as follows: “Title I contains provisions shared by the Communities, common foreign policy, and judicial cooperation. Title II contains provisions amending the EEC Treaty, while Titles III and IV amend the ECSC and EAEC Treaties respectively. Title V introduces provisions concerning common foreign and security policy (CFSP). Title VI contains provisions on cooperation in the fields of justice and home affairs (JHA). The final provisions are set out in Title VII of the Treaty”. http://europa.eu/legislation_summaries/institutional_affairs/treaties/treaties_maastricht_en.htm>
[13] J.M. Magone, ‘The end of the borders? The politics of territorial cooperation in the multi-level governance system. A comparative study of cross-border cooperation initiative ’ Berlin School of Economics & Law (2010)- http://www.aecpa.es/uploads/files/congresos/congreso_09/grupos-trabajo/area02/GT01/08.pdf>
[14]Article 34 TFEU; Free movement of goods: Guide to the application of Treaty provision governing the free movement of goods’, European Commissions Director of Enterprise and Industry (2010) , pg10 < http://ec.europa.eu/enterprise/policies/single-market-goods/files/goods/docs/art34- 36/new_guide_en.pdf
[15]Article 45 TFEU; ‘Free movement of goods: Guide to the application of Treaty provision governing the free movement of goods', European Commissions Director of Enterprise and Industry (2010) , pg 31 < http://ec.europa.eu/enterprise/policies/single-market-goods/files/goods/docs/art34- 36/new_guide_en.pdf Regulation (EC) No 2006/2004 of the European Parliament and of the Council of 27 October 2004 on cooperation between national authorities responsible for the enforcement of consumer protection laws (the Regulation on consumer protection cooperation) [See amending act(s)].
[16]<http://europa.eu/legislation_summaries/consumers/protection_of_consumers/l32047_en.htm>
[17]Rome Treaty 1957, Title 1, ‘Common Provisions, Article 1- http://eur-lex.europa.eu/en/treaties/dat/12002M/htm/C_2002325EN.000501.html>
[18]P. Minford, V. Mahambare, and E. Nowell, ‘Should Britain Leave the EU? An Economic Analysis of a Troubled Relationship'’ <http://www.euro-know.org/eu_book/index.php
[19]Ibid, pg 3
[20]Rewe Zentrale v Bundesmonopolverwaltung für Branntwein (‘Cassis de Dijon’) [1979] ECR 649
[21] C-213/89 Factortame I [1990] ECR I-2433, A duty is placed on national courts to secure the full effectiveness of Community law, even where it is necessary to create a national remedy where none previously existed. The House of Lords accepted supremacy of EU law in this case. This is important in context of British Parliamentary Sovereignty. Lord Bridge held that Parliament had voluntarily accepted this limitation of its sovereignty, being fully aware that, even if the limitation of sovereignty was not inherent in the EEC Treaty, it had been well established by jurisprudence before Parliament passed the European Communities Act of 1972
[22] V. Miller, ‘Leaving the EU’ Research Paper 13/42, House of Commons Library (1 July 2013) <www.parliament.uk/briefing-papers/RF13-42.pdf
[23]V. Miller, ‘Leaving the EU’ Research Paper 13/42, House of Commons Library (1 July 2013) <www.parliament.uk/briefing-papers/RP 13 -42.pdf
[24]M. Newman, ‘Concepts and Confusions', Democracy, Sovereignty and the European Union, London: Hurst & Company, 1996, p.3
[25]Ibid
[26]S. Hanson, ‘Chapter 5: Reaching English Law - The European Dimension’, Legal Method and Reasoning, 2nd Ed., 2003, p.131
[27] M. Newman ‘Concepts and Confusions, Democracy, Sovereignty and the European Union’, 1996, London: Hurst & Company, p.3
[28]Ibid
[29]Official Journal Council Regulation (EC) OJL 73 of 7.3.1972, p. 3 < http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:1972:073:FULL:EN:PDF
[30] Official Journal of the European Communities Legislation, Special Edition, 27 March 1972 <http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:1972:073:FULL:EN:PDF>
[31]A. Aust, ‘ Chapter 23: The European Union’ Handbook of International Law, 2nd Ed. 2010, Cambridge University Press, p.430
[32]M. Newman ‘Concepts and Confusions', Democracy, Sovereignty and the European Union, 1996, London: Hurst & Company, p.3
[33]S. Hanson, ‘Chapter 5: Reaching English Law - The European Dimension’, Legal Method and Reasoning, 2nd Ed., 2003, p.132
[34]K. A. Mingst, , I. M., Arreguín-Toft ‘Chapter 7: Intergovernmental Organizations, Nongovernmental Organizations, and International Law | Essentials of International Relations', 5 Ed., September 2010 < http://www.wwnorton.com/college/polisci/essentials-of-international- relations5/ch/07/summary.aspx
[35]Ibid, p.132
[36]Ibid, p.132
[37]B. Vaughan, , ‘An Analysis of EU Governance and Policy Making", National Economic & Social Development Office NESDO, p.12 and p.27
[38]Europa, ‘The Treaty on the Functioning of the European Union", Official Journal of the EU, (Consolidated version), 9 May 2008, C115/49 < http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2008:115:0047:0199:EN:PDF> (accessed 1 March 2014)
[39]B. Vaughan, ‘An Analysis of EU Governance and Policy Making’, National Economic & Social Development Office NESDO, p.28
[40]K. Archick ‘The European Union: Questions and Answers’ Congressional Research Service,January 15, 2014, p.1
[41]D. Edward ‘EU Law and the Separation of Member States’, 36 Fordham Int’l L.J. 1151 (2013)
[42] M. Stiernstrom, ‘The Relationship between Community Law and National Law’ The Jean Monnet Chair University of Miami, Miami Florida (October 2005)
[43](Case 6/64) Costa v ENEL [1964] ECR 585
[44]P. Craig and P. De Burca, “EU Law Test, Cases and Materials”, (4th Edition) Oxford University Press, 2007, p.344.
[45](Case 106/77), Amministrazione delle Finanze dello Stato v. Simmenthal SpA [1978] ECR 629
[46]K-D.Borchardt, ‘ The ABC of Community Law’, Official Publication of the European Communities, 2000, p. 24
[47](Case 228/69), Internationale Handelsgesellschaft mbH v. Einfuhr und Vorratsstelle für Getreide und Futtermittel [1970] ECR 1125; [1972] CMLR 255
[48] Ibid.
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