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When studying the legal system of England and Wales it is very easy to turn our analytical lens inwards, looking only at the rules, systems and procedures that have their origins from within the legal system in question. However, it is important to realise that what forms the core of the legal system is influenced, or even formed, by external factors and forces. It is both dangerous and unwise to study a legal system in a vacuum without an appreciation of that wider context.

 

One of the clearest examples of this type of external influence comes from the UK’s former membership of the European Union. This membership had a significant impact for more than 40 years and will continue to have an impact, albeit of a different sort into the future. An understanding of the European Union is therefore crucial to understanding the legal system of England and Wales. As Lord Denning put it ‘the [EU] Treaty is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back, Parliament has decreed that the Treaty is henceforward to be part of our law. It is equal in force to any statute.’[1] European Union law will continue to be relevant into the future, but perhaps not in the powerfully poetic language of Denning. This is both in terms of the substantive law that will be subsumed into the domestic legal order and also in the imprint that membership will leave on the institutions, principles and personnel of the legal system.

 

This chapter will start by sketching out the institutional structure of the EU and its independent law-making capacity. It will then move on to examine the far-reaching influence that European Union law has exerted over the legal system in a number of important areas, some of which have already been discussed in earlier chapters of this work. Finally, the chapter will then look to the future and consider what the UK’s exit from the European Union will mean for the status and lasting influence of EU law over the legal system of England and Wales.

 

As you read 

As noted in the Introduction, this chapter seeks to achieve a number of purposes: looking backwards to the effect of EU membership on the legal system, looking forwards to a post-Brexit future, comparing the EU’s legal system with that of England and Wales and placing the domestic legal system into its broader international context. As you read, keep these purposes in mind and reflect upon how the issues under discussion interact with the discussion in earlier chapters.

 

By the end of this chapter, the reader should have an emerging understanding of the legal framework that governs European Union law. You should be able to consider critically the impact of EU law on the legal system of England and Wales in the past and evaluate its potential continuing impact once the UK ends its membership through an appreciation of categories of what was called retained (now assimilated) EU law.

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The European Union

The European Union is an international organisation of, at the time of writing, 27 Member States. Over its more than half a century of operation, the European Union and its influence over its member countries has changed beyond all recognition through a process of wider and deeper integration of the law and legal systems of the Member States.

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The UK joined the EU in 1973 but it is important to note that a referendum on the UK’s continued membership of the EU was held in 2016 and, by a margin of 51.89% to 48.11%,[2] it was decided that the UK would leave the European Union (a process that has come to be known as ‘Brexit’).[3] The process of leaving proved to be fraught with legal and political challenges and, following a number of extensions to the two-year process for leaving, the UK finally left the EU on 31 January 2020, entering a transition period that ended on 31 December 2020.

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This section will explore some of the key features of the EU’s legal order and consider the operation of the major institutions and mechanisms of law-making.

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Treaties and a treaty-based system of rules

The defining characteristic of the EU is that it is a system of legal rules based on the Treaties agreed between the Member States. The two foundational treaties[4] that govern the EU are:

• The Treaty on European Union (TEU)

• The Treaty on the Functioning of the European Union (TFEU)

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This treaty-based system, where the powers of the institutions are defined and constrained by the formal agreement, is common in international law but stands in stark contrast to the way in which power and sovereignty exist in the legal system of England and Wales. The consequence of this arrangement is that the focus of law-making in the EU is on the aims defined within the Treaties and law can only be enacted within the areas of competence laid out in those Treaties.  

 

 Values and aims of the European Union

The European Union’s purpose has developed over time, since the original European Coal and Steel Community in 1951, which preceded the development of the Union as we know it today. What started as an endeavour to use trade[5] to promote peace and unity following the horrors of the Second World War has now developed into a sophisticated organisation that governs an increasingly wide range of policy areas. The aims and purpose of the EU can be found in the opening Articles of the Treaty on European Union, which reinforces the concept that the EU is intended to be a process of ‘ever closer union’[6] between its member countries. This is fleshed out in Article 2 TEU, which confirms the shared values upon which the Union is based:

 

Respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.

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The primary aims of the EU can be found in Article 3 TEU:

1   The Union’s aim is to promote peace, its values and the well-being of its peoples.

2   The Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime.

3   The Union shall establish an internal market. It shall work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment. It shall promote scientific and technological advance.

It shall combat social exclusion and discrimination, and shall promote social justice and protection, equality between women and men, solidarity between generations and protection of the rights of the child.

It shall promote economic, social and territorial cohesion, and solidarity among Member States.

 It shall respect its rich cultural and linguistic diversity , and shall ensure that Europe’s cultural heritage is safeguarded and enhanced.

4   The Union shall establish an  economic and monetary union whose currency is the euro .

5   In its relations with the wider world, the Union shall uphold and promote its values and interests and contribute to the protection of its citizens. It shall contribute  to peace, security, the sustainable development of the Earth , solidarity and mutual respect among peoples, free and fair trade,  eradication of poverty and the protection of human rights , in particular the rights of the child, as well as to the strict observance and the development of international law, including respect for the principles of the United Nations Charter.

6   The Union shall pursue its objectives by appropriate means commensurate with the competences which are conferred upon it in the Treaties.’[7]

 

From the preceding we can see that the EU has a multitude of goals, some of which are economic and some of which embrace social or political aims. In this way the EU is pooling or sharing the sovereignty of its members in order to tackle both global and local issues and is no longer, if it ever really was, just about trade.  

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European Union competence

Central to an understanding of the difference between a sovereign state and an international organisation such as the EU is the principle of ‘conferred competence’.[8] A sovereign state (such as the United Kingdom) has ultimate, original legislative power. This means that the UK Parliament can make or unmake any law it wishes.[9]

 

Making connections – the nature of sovereignty 

What is being described here is the doctrine of parliamentary sovereignty. If you study public law in the future then you will return to this doctrine as it is an extremely important principle of the British constitution. Chapter 4 of this textbook also briefly considered the notion of a supreme legislative authority when considering the law-making process of the Westminster Parliament.

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The EU is very different and can only do things it has been given the express power to do. This is the doctrine of ‘conferred competence’. For this reason, and as you will notice, the current chapter of the textbook is also different to the ones that have gone before with a much closer focus on precise Articles of the Treaty and less on principle-led discussion. The doctrine of conferred competence operates through three types of Union competence: exclusive, shared and supporting/coordinating competences (Figure 16.2).

 

Figure 16.2                     Types of EU Competence

 

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If the EU attempts to act in an area where it has no competence to do so, the measure could be challenged before the Court of Justice of the European Union.[10] It is therefore of paramount importance that you can tell the difference between the different types of competence listed.

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Explaining the law – categories of competence 

Article 2(1) TFEU – ‘When the Treaties confer on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts.’

 

Article 2(2) TFEU – ‘When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence.’

 

Article 2(5) TFEU – ‘In certain areas and under the conditions laid down in the Treaties, the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas.’

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The Treaty also details the areas that are covered by exclusive, shared and supporting competences. These are detailed in Figure 16.3.  

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Membership – entering and leaving the European Union

The European Union is not open to all nation states. There is a legal process for acceding to and for leaving the European Union and the benefits of membership only accrue to those who meet the criteria for joining.

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To join the European Union a potential Member State must meet the so-called Copenhagen criteria that lay down geographical, legislative and economic conditions for entry.[11] The process of joining the EU is governed by Article 49 TEU. Once negotiations are opened the candidate country must satisfy that the detail of 35 policy areas,[12] or chapters, have been achieved before a final decision can be taken as to whether to allow accession of the country to the Union as a full Member State.[13]

 

Figure 16.3 Detailed Content of European Union Competence

fig16_3.jpg 

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Until the reforms brought about by the Lisbon Treaty in 2009, there was no Article within the Treaty that provided a mechanism by which a Member State could leave the European Union. This was remedied by the inclusion of Article 50 TEU in 2009, which reads as follows:

1   Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

2   A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

3   The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.[14]

 

It is according to this process that the UK has implemented its decision to leave the EU. The process for the domestic legal system was (putting it mildly) fairly difficult, triggering two General Elections and the fall of Theresa May’s and David Cameron’s Governments as well as numerous court cases.[15]

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References

[1] HP Bulmer Ltd and Another v J Bollinger SA and Others [1974] Ch 401, [1974] 3 WLR 202 (CA) 418.

[2] On a turnout of 72.21% of the eligible electorate.

[3] A contraction of ‘Britain’s Exit’.

[4] Originally there was one Treaty but a second was added in 1992 and both have been amended over the lifetime of the EU.

[5] By creating an integrated market in the materials of war – coal and steel.

[6] Article 1 TEU.

[7]Author emphasis in bold italics.

[8] A principle noted in Articles 1, 3(6), 4 and 5 TEU. For discussion of conferred competence see Franz Mayer, ‘Competences – Reloaded? The vertical division of powers in the EU and the new European constitution’ (2005) 3 IJCL 493.

[9] This is not saying that the UK Parliament would pass any law, only that it has the power to do so.

[10] This is referred to as an ‘action for annulment’ in Article 263 TFEU.

[11] Such as the country being located in Europe and demonstrating respect for democracy, human rights, the rule of law and having a functioning market economy.

[12] These include passing laws in relation to, amongst other things – the free movement of goods, the freedom of movement of workers, company law, competition law, intellectual property law, agriculture, fisheries, energy, taxation, economic and monetary policy, social policy and employment, environment, external relations and institutions.

[13] A decision that requires unanimous agreement amongst the current members.

[14] Emphasis added.

[15] R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5, [2018] AC 61. This case considered whether the Government could issue the notification triggering Article 50 TEU without recourse to Parliament.