This EU Won't Work

There has been much consternation, condemnation and resignation since the Government decided to consider breaking international law to protect its own internal market, so ruining its trusted reputation. Can the EU be trusted and can the protection be justified legally or pragmatically?

Right Honourable Members of Parliament know, or should know, that despite its outrage when the bill was announced the EU has itself ignored international treaty obligations. Of course since they are honourable they also know that ‘two wrongs don’t make a right’, but can the EU be trusted? Not on past form.

In a judgement by the CJEU (Kadi v. Commission) Advocate General Modero summarised the opinion of the judges that “EU law did not need to unconditionally bow to international law if the consequence could be a violation of basic constitutional principles. Although the Court takes great care to respect the obligations that are incumbent on the Community by virtue of international law, it seeks, first and foremost, to preserve the constitutional framework created by the Treaty.“ The court ruled in the Commission’s favour thereby setting a precedent in EU law, the Withdrawal Agreement requires that precedent is followed by British courts [1].

Case precedent is a key way in which the CJEU meets its requirement to advance the Union towards its strategic objective of ever closer union, exactly what UK citizens chose to end by their votes in the Referendum and 2020 General Election. Precedent under English law enables the courts to adapt quickly to new circumstances, although Parliament can override any outcome when it chooses with new legislation; there is no underlying political motive—or there shouldn’t be, except the Supreme Court may have forgotten this [2]

The EU has been a serial breaker of international treaties and so have its member states – including the UK, although its record is better than most of the others. Countries break or withdraw from treaties all the time, sometimes for understandable, pragmatic reasons – circumstances change or problems are not foreseen. Britain for example withdrew from the Geneva Convention of the Sea without even giving a reason—the Convention has to do with action on the high seas including pollution, piracy, slave transport, hot pursuit and much else. The Labour Government at the time didn’t explain why it broke the Convention only fifteen days after signing up in 1965, its lawyers must have spotted something a bit late. The highly respected judge Lord Diplock ruled, “The Crown [the Government] has a sovereign right, which the court cannot question, to change its policy, even if this involves breaking an international convention to which it is a party…” His lordship didn’t say whether he approved of the action, only that it was a political decision and not justiciable. To follow this precedent is legal under UK law; whether it is wise is another matter but there is certainly a precedent for what HMG is now proposing.

State Aid infringements judged by the CJEU against Germany, Italy, Spain and France have been well ahead of the UK. Post-Brexit Britain is going to need flexibility to manage its economy given the extra burden of covid-19 and cannot let itself be overruled by an aggressive foreign authority, especially in the event of no deal.

The EU’s consolidated treaties (TFEU/TFU) are international, legal agreements but modifying them requires unanimous approval which takes time, it’s quicker to break the laws. Here in brief are a few examples where the EU has failed to follow its own international laws.

The Coronavirus Recovery Fund may be a good thing but it is illegal under TFEU because the bailouts are not restricted to natural disasters which have caused a member state to fall into difficulties (Germany and others will receive funds when they could cope from their own resources).

Euozone members must not run deficits greater than 3% of GDP. After the financial crisis France exceeded this (for a full decade) whilst Germany, Italy, Greece and Portugal were amongst others – pragmatic but illegal. The UK (outside the eurozone) only had to “endeavour” to stay under 3% (it failed). Germany has also been running a continuous trade surplus within the eurozone of well over twice the limit permitted under the TFEU.

The EU’s nomination to replace Lagarde as head of the IMF was Bulgarian economist Kristalina Georgieva; according to the Treaty this should have been decided by QMV but she failed to get the votes needed. She was put forward anyway, probably because the lack of senior posts for eastern states was becoming embarrassing following the presidential appointments of Von der Leyen (European Commission), Michel (European Council) and Lagarde (European Bank). The nomination was a good choice and a pragmatic one but not legal.

The EU has also broken WTO and UN agreements:

Subsidies to Airbus were illegal under WTO rules on state aid. The fact that rival Boeing was effectively being subsidised by the US Government via military contracts was no excuse in law, however necessary to maintain Airbus’s competitiveness.

Returning to the Kadi v. Commission case, the CJEU’s decision ignored the UN Charter intended to prevent money laundering by terrorists, following the 9/11 atrocity at New York’s World Trade Center. Mr Kadi claimed his frozen assets in Sweden were intended to help Somali refugees But whether or not they were actually terrorist funds is not the point, the appeal should have been to the UN.

In all the examples so far the decisions and outcomes might be argued to have been reasonable but then it is surely reasonable for a sovereign nation to manage its own internal market. Furthermore the UKIMB asserts the primacy of Parliament which itself was underlined by the UK Supreme Court’s judgement in the case brought by Remainer fanatic Gina Miller concerning its proroguing prior to the 2019 General Election. In the U.K. international treaties only have legal effect within U.K. domestic law to the extent that domestic law gives effect to them.

Article 60 of the Vienna Convention states: “A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part.” The Northern Ireland Protocol is in breach of the ECHR principle of the right to vote.

Finally, Article 184 of the Withdrawal Agreement requires the parties to negotiate “in good faith” and obliges both sides to use their “best endeavours” to conclude a successor treaty by December 31, 2020. Given that The EU has offered and now withdrawn the offer of CETA-equivalent trade agreement it is hard to see good faith or endeavour.

[1] from Article 4 of the Withdrawal Agreement (WA):

“4. The provisions of this Agreement referring to Union law or to concepts or provisions thereof shall in their implementation and application be interpreted in conformity with the relevant case law of the Court of Justice of the European Union handed down before the end of the transition period.”

“5. In the interpretation and application of this Agreement, the United Kingdom’s judicial and administrative authorities shall have due regard to relevant case law of the Court of Justice of the European Union handed down after the end of the transition period.”

Also see Will the UK be Sovereign Again?

[2] We have discussed this several times before:

“What this country needs is a benign dictatorship”; Supremely Stupid; UK High Court Judgement on Triggering Article 50