. 58
( 155 .)


fundamentals of the constitution as parliamentary sovereignty and ministerial

(a) Nature and development of the European Union
First, let us get our terminology right. What the United Kingdom joined in 1972
was, at that time, called the European Economic Community (EEC). In the
early 1990s this organisation changed its name to the European Community
(EC). At the same time the EC became one of the three ˜pillars™ of the newly
created European Union. The ˜Community pillar™ is the ¬rst pillar of the EU and
dates from the EEC™s inception in 1957. The second pillar is known as the
common foreign and security policy (CFSP) and the third pillar, originally
known as justice and home a¬airs (JHA), is now known as police and judicial
cooperation in criminal matters (PJCCM). These pillars date only from the
early 1990s. Thus, the European Community is a constituent element of the
European Union. Moreover, for our purposes, it is the most important element.
You will often see the EC and the European Union being used interchangeably,
as if they mean the same thing. While this is not technically correct “ the EC is
279 The European dimensions

technically but one part of the European Union “ it is, in some circumstances,
forgivable. (What is completely unforgivable is to confuse either the EC or the
European Union with the Council of Europe and its ECHR, which was dealt
with in the previous section.)
Each of the pillars is concerned with di¬erent subject matter: the ¬rst pillar
is concerned with economic union whereas the second and third pillars are con-
cerned with aspects of political union. They are also structurally di¬erent from
one another. While the whole of the European Union shares a common set of
institutions (principally, as we shall see in the next section, the Commission, the
Council of Ministers, the European Parliament and the Court of Justice), the
balance of powers between the institutions and the Member States is di¬erent
in the three pillars. The Commission and the Court of Justice have more powers
with regard to the Community pillar than they do in respect of the second and
third pillars. This is because the second and third pillars remain politically more
sensitive than is most of the Community pillar, meaning that the national
governments of the Member States wish to maintain a higher degree of control
(and more powers of veto) in these ¬elds. As such, the Community pillar may
be described as being more ˜supranational™ in character, whereas the second and
third pillars remain more ˜inter-governmental™, the di¬erence between the two
labels signifying the di¬erent level of policy and law-making control that
continues to vest in the national governments of the Member States. Another
way of putting this is that a greater degree of national sovereignty has been
ceded (or ˜pooled™, as the European Court of Justice puts it) to the Community
pillar than is the case in the second and third pillars.
This di¬erence is important, as many of the features of the European Union
that raise the most signi¬cant constitutional concerns are features that are either
con¬ned to, or at least more prominent in, the Community pillar. The doctrine
of direct e¬ect, for example, is a principle of Community law, not EU law: leg-
islation (known as ˜framework decisions™) adopted under the third pillar is
expressly stated not to entail direct e¬ect (Art 34 TEU).
The European Economic Community was established in 1957 by six found-
ing Member States: France, West Germany, Italy, Belgium, the Netherlands and
Luxembourg. Its creation was a key part of the international attempts made in
the aftermath of the Second World War to rebuild Europe, and to do so in
a manner that sought to prevent the recurrence of war. The core idea behind the
EEC was to ¬nd ways of making the economies of the Member States (and espe-
cially of France and West Germany) so mutually entwined and interdependent
that it simply ceased to be in the economic interests of the states to go to war
with one another. To this day, economic union remains a central theme of the
European Union.
The story of the EEC from the 1950s until the present day is one of growth.
That growth can be expressed in three main ways: through the enlargement of
its membership, through the series of Treaties that have amended it, and
through the new powers it has accumulated. Enlargement started with e¬ect
280 British Government and the Constitution

from 1 January 1973, when three countries joined the original six: the United
Kingdom, Denmark and Ireland. Following this, Greece became a member in
1981, Portugal and Spain became members in 1986 and Austria, Finland and
Sweden joined in 1995 to make a European Union of ¬fteen Member States.
The largest and most controversial enlargement took place in 2004, when ten
new countries joined, eight of which are countries of central or eastern Europe,
from the former Soviet, or Communist, bloc. The ten are: Poland, the Czech
Republic, Slovakia, Hungary, Slovenia, Estonia, Latvia, Lithuania, Cyprus and
Malta. In addition, Romania and Bulgaria joined with e¬ect from January 2007,
making a European Union of twenty-seven Member States. This is unlikely
to be the last enlargement, however, as accession negotiations have now com-
menced with Croatia and also with Turkey, a country which is not universally
seen as ˜European™ (whatever that may actually mean) and which has a bigger
population than any of the present Member States (the largest of which is
The Treaty establishing the EEC was known as the Treaty of Rome. It has
been amended several times, ¬rst by the Single European Act (1986) and
subsequently by Treaties signed at Maastricht (coming into force in 1993),
Amsterdam (1997) and Nice (2001). All of these Treaties were to be replaced
with a new Constitutional Treaty, but while the Constitutional Treaty was
signed by all the Member States its rati¬cation proved problematic in several
countries and in May and June 2005 it was rejected in popular referendums in
France and the Netherlands. Since that time the Constitutional Treaty has been
˜on hold™ as Europe ˜pauses to re¬‚ect™ (see the statement of the Foreign Secretary,
HC Deb vol 434, col 991, 6 June 2005). At the time of writing it seems unlikely
that it will be resuscitated, at least in its present form, although some of the
amendments it would have made may be introduced through other, less dra-
matic, means. (For the background to, reasons for, content of and failure of the
Constitutional Treaty, see D Chalmers, C Hadjiemmanuil, G Monti and
A Tomkins, European Union Law: Text and Materials (2006), ch 2 (hereafter
referred to as ˜Chalmers et al™); for analysis of what may happen next, see
de Búrca, ˜The European constitution project after the referenda™ (2006)
13 Constellations 205.)
Of the various rounds of Treaty amendment, what happened at Maastricht is
the most signi¬cant. It was at Maastricht that the European Union was created.
While the ¬rst pillar (the Community) had existed since the Treaty of Rome in
1957, the second and third pillars date only from Maastricht. The signi¬cance of
this lies in the fact that, unlike the Community pillar, the second and third pillars
are not principally devoted to economic union, but to various aspects of political
union. This was the ¬rst major decision taken by the governments of the (then
twelve) Member States at Maastricht: namely, the commitment to embark on a
form of European political union. The second major decision taken at Maastricht
was to press ahead with the single European currency, the Euro. For our purposes,
both decisions were of monumental importance, not least because of the
281 The European dimensions

eruptions they caused in British politics. It is political union and monetary union,
more than any other European policy, that so divided the Major Government in
the 1990s and that has caused deep rifts within both the Labour and the
Conservative Parties. (On the di¬culties faced by the Major Government in
seeking to persuade Parliament to pass the legislation necessary to give domestic
legal force to the changes agreed at Maastricht, see Rawlings [1994] PL 254
and 367; on Prime Minister John Major™s subsequent resignation from and
re-election to the leadership of the Conservative Party, see Brazier [1995] PL 513.)
Since Maastricht there have been two Treaties in force. The ¬rst, the EC
Treaty, is the amended Treaty of Rome that governs the Community pillar. The
second, the Treaty on European Union (TEU) governs the second and third
pillars. Both these Treaties continue in force, as subsequently amended at
Amsterdam and at Nice and it is important, when citing provisions from them,
to be clear as to which Treaty is meant. The amendments agreed at Amsterdam
and at Nice, while signi¬cant in some respects, were not as important as those
made at Maastricht, and we do not need to concern ourselves with their detail
here (for an overview, see Chalmers et al (2006), pp 32“43). (That said, one
change made at Amsterdam was to renumber the Treaty Articles. In this book,
only the current, post-Amsterdam numbers are used.)
The various rounds of Treaty amendment have served numerous purposes.
They have adjusted the composition and powers of the European Union™s
various institutions and bodies (on which, see below). They have added new
concepts into EU law: the notion of a European citizenship, for example, was
added at Maastricht (see now Arts 17“22 EC). But most importantly, they have
extended the range and the reach of the European Union™s various powers. It
was pointed out above that the EEC was based on the idea of economic union
between the Member States. Legally, at the heart of economic union lie the four
˜fundamental freedoms™ of EU law: the free movement of goods (Art 23 EC), the
free movement of persons (Art 39 EC), the free movement of services (Art 49
EC) and the free movement of capital (Art 56 EC). To this day, these principles
continue to form the core of the European Union™s single or internal market.
Alongside these provisions, the other major features of economic union
concern competition law (Arts 81“9 EC) and the common agricultural policy
(Arts 32“8 EC). All of these matters have been central to the European project
since the EEC™s foundation in the 1950s, and they continue to be so. In addi-
tion, the Treaty of Rome contained a number of provisions concerned with
social policy. Among the most important of these is what is now Article 141 EC,
which provides that ˜Each Member State shall ensure that the principle of equal
pay for male and female workers for equal work or work of equal value is
applied™. As we shall see in the ¬nal section of this chapter, this provision was
central to a number of early disputes in the British courts about the domestic
e¬ects of EU law.
Since the 1950s a range of matters have been added to the legislative and
policy-making competence of the European Union. For example, provisions
282 British Government and the Constitution

concerning environmental law were added by the Single European Act; provi-
sions concerning common foreign and security policy and certain matters of
criminal justice were added at Maastricht; and provisions on employment
policy and on visas, asylum and immigration were added into the EC Treaty at
The preamble to the EC Treaty includes a general and somewhat rhetorical
declaration of principles, the ¬rst being ˜to lay the foundations of an ever closer
union among the peoples of Europe™ (emphasis added). This is followed by
a statement of the objectives of the Community in Article 2:

The Community shall have as its task, by establishing a common market and an economic
and monetary union and by implementing common policies or activities referred to in Articles
3 and 4, to promote throughout the Community a harmonious, balanced and sustainable
development of economic activities, a high level of employment and of social protection,
equality between men and women, sustainable and non-inflationary growth, a high degree
of competitiveness and convergence of economic performance, a high level of protection and
improvement of the quality of the environment, the raising of the standard of living and
quality of life, and economic and social cohesion and solidarity among Member States.

From this it appears that the goals of the Community are to be attained by the
mechanisms of a ˜common market™ and ˜economic and monetary union™ as well
as by a range of common policies and activities. Article 3 presents a list of these:

1. For the purposes set out in Article 2, the activities of the Community shall include, as
provided in this Treaty and in accordance with the timetable set out therein:

(a) the prohibition, as between Member States, of customs duties and quantitative restric-
tions on the import and export of goods, and of all other measures having equivalent
(b) a common commercial policy;
(c) an internal market characterized by the abolition, as between Member States, of
obstacles to the free movement of goods, persons, services and capital;
(d) measures concerning the entry and movement of persons as provided for in Title IV;
(e) a common policy in the sphere of agriculture and fisheries;
(f) a common policy in the sphere of transport;
(g) a system ensuring that competition in the internal market is not distorted;
(h) the approximation of the laws of Member States to the extent required for the
functioning of the common market;
(i) the promotion of coordination between employment policies of the Member States
with a view to enhancing their effectiveness by developing a coordinated strategy for
(j) a policy in the social sphere comprising a European Social Fund;
(k) the strengthening of economic and social cohesion;
(l) a policy in the sphere of the environment;
283 The European dimensions

(m) the strengthening of the competitiveness of Community industry;
(n) the promotion of research and technological development;
(o) encouragement for the establishment and development of trans-European networks;
(p) a contribution to the attainment of a high level of health protection;
(q) a contribution to education and training of quality and to the flowering of the cultures
of the Member States;
(r) a policy in the sphere of development cooperation;
(s) the association of the overseas countries and territories in order to increase trade and
promote jointly economic and social development;
(t) a contribution to the strengthening of consumer protection;
(u) measures in the spheres of energy, civil protection and tourism.

2. In all the activities referred to in this Article, the Community shall aim to eliminate
inequalities, and to promote equality, between men and women.

Articles 5 and 10 EC concern aspects of the constitutional relationship
between the Community™s institutions on the one hand and the Member States
on the other. Article 5 EC sets out three principles designed to constrain the
Community institutions, known as the principles of conferred powers, of
subsidiarity and of proportionality:

The Community shall act within the limits of the powers conferred upon it by this Treaty and
of the objectives assigned to it therein.
In areas which do not fall within its exclusive competence, the Community shall take
action, in accordance with the principle of subsidiarity, only if and insofar as the objectives
of the proposed action cannot be sufficiently achieved by the Member States and can there-
fore, by reason of the scale or effects of the proposed action, be better achieved by the
Any action by the Community shall not go beyond what is necessary to achieve the
objectives of this Treaty.

Article 10 EC, in many ways the counterpoint to Article 5, sets out the obliga-
tions of the Member States (this is sometimes known as the duty of ¬delity, or
the loyalty principle):

Member States shall take all appropriate measures, whether general or particular, to ensure
fulfilment of the obligations arising out of this Treaty or resulting from action taken by
the institutions of the Community. They shall facilitate the achievement of the Community™s
tasks. They shall abstain from any measure which could jeopardise the attainment of the
objectives of this Treaty.

Articles 5 and 10 EC are judicially enforceable by the European Union™s court,
the European Court of Justice (on the powers of which, see below). Both pro-
visions have been central in the development of the constitutional law of the
284 British Government and the Constitution

European Union. On the principle of conferred powers see, for example,
Opinion 2/94 Accession to the ECHR [1996] ECR I-1759 (where the Court of
Justice ruled that the European Union lacked the power to accede to the
European Convention on Human Rights) and Case C-376/98 Germany
v Parliament and Council (˜Tobacco Advertising™) [2000] ECR I-8419 (where the
Court of Justice ruled that the Tobacco Advertising Directive had been unlaw-
fully adopted). On subsidiarity, see Case C-377/98 Netherlands v Parliament and
Council (˜Biotechnology Directive™) [2001] ECR I-7079, a case which illustrates
how immensely reluctant the Court of Justice is to impugn legislation on this
ground “ indeed, the Court has yet to invalidate a single piece of legislation on
the basis of its violation of the principle of subsidiarity. And on proportional-
ity, see Case C-491/01 R v Secretary of State for Health, ex p British American
Tobacco [2002] ECR I-11453, concerning the European Union™s controversial
Directive on the sale and marketing of certain tobacco products.


. 58
( 155 .)