Continued:
The ECJ further advances its powers
Having secured the basic principles that Community law penetrates inside the legal systems of Member States and takes precedence over all national laws in the courts of the Member States, the ECJ went on to build its powers further after our entry in 1973.
In the 1987
Foto-Frost case, the European Court ruled that national courts had no power to question the validity Community measures and reserved that power exclusively to itself, even though there was 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.
The EEC was (mistakenly) regarded as just the "common market" by many people in this country and during the 1976 referendum campaign it was presented almost exclusively in those terms. But the ECJt made it more and more clear that it regarded a European common market not as an end in itself, but simply a means to a greater end.
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 progress 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 attaining 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 the 1963
Van Gend case should be noted. By 1992, “limited fields” had 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 the member states to the centre.
The Court has also expanded the powers of the Community/EU over the external relations of the member states. It developed a doctrine of implied external competence - that the Community had power to make external agreements relating to fields over which it had 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 (now EU) has attained an internal competence.
Whilst the ECJ has liberalised the internal market, it has often used its growing powers over the external trade of the member states in a way which inhibits the liberalisation of trade 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 within the Community. This enables trade mark proprietors to prevent the importation of their own genuine goods into the EU from other countries where they have placed them on the market (e.g. Levi jeans in the USA), so enabling them to charge consumers within the EU a higher price than in other markets.
Similarly, in the field of regulations and technical standards, the ECJ has ruled in the 1999 Agrochemicals case that the UK is prohibited by EU law from licensing “parallel imports” from non-EU countries, even though the products are identical to agrochemicals licensed inside the EU and made by the same manufacturer.
The rationale of this “fortress Europe” mentality is baffling, and is particularly painful for a global trading nation such as the United Kingdom.
ECJ overcomes national vetoes by creative "interpretation"
Where the onward progress of European integration has been blocked by national vetoes, the Court has been willing to re-interpret the Treaty to make up for the lack of progress on the legislative front. In a whole series of tax cases, the Court 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 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. The problem now is that ECJ's case law in this area makes it very difficult for national legislation effectively to tax the activities of multi-national companies who use tax avoidance structures set up for example under Luxembourg law.
In a 2005 environmental protection case, the Court decided that the EC could, under its first-pillar supranational law-making powers, specify and impose criminal offences and penalties in the very wide fields where the EC had 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 25 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.
The ongoing process of expansion of powers by 'interpretation'
By looking back over time, we can see how powerful has been the effect of the rolling process of the ECJ's re-interpretation of the European Treaties, coupled with the doctrines of direct effect and primacy.
In more recent years, the ECJ has further extended the reach and scope of the EU law and of its own powers. Its most powerful new weapon in doing so is now the Charter of Fundamental Rights of the European Union.
We shall be explaining how the court has made use of that Charter, and how it has effectively castrated the "opt out" with the UK thought it was getting from the effects of that Charter, in a further article.
http://www.lawyersforbritain.org/eulaw-ecj-primacy.shtml
