In this post we look at some of the more legalistic treaty articles, including: the role of the CJEU, procedure for revising the Treaties, leaving the Union, Union competences, shared competencies, passing control upwards, the subjugation of the European Parliament.
CONSOLIDATED VERSION OF THE TREATY ON EUROPEAN UNION (TEU)
Article 1: By this Treaty, the HIGH CONTRACTING PARTIES establish among themselves a EUROPEAN UNION, hereinafter called ‘the Union’, on which the Member States confer competences to attain objectives they have in common.
Also many objectives that they don’t all share, including submission to a federal government (see Article 191 of the TFEU and our comment, below).
Article 19: 1. The Court of Justice of the European Union shall include the Court of Justice, the General Court and specialised courts. It shall ensure that in the interpretation and application of the Treaties the law is observed.
The law, in this case, begins with the Treaties which, as we have seen already, are full of caveats, exceptions and tortuous descriptions so that their interpretation by these courts can easily be used to favour whatever is in the interests of the Union rather than of justice more broadly considered.
The Court of Justice of the European Union (CJEU) enforces the Commission’s rules. UK common law evolved over 800 years, since Magna Carta, to protect the rights of individuals against an over-mighty state. The CJEU is charged with interpreting the Commission’s prescribed body of law (Corpus Juris) to further its ambitions.
Article 19: 3. The Court of Justice of the European Union shall, in accordance with the Treaties:
(a) rule on actions brought by a Member State, an institution or a natural or legal person;
(b) give preliminary rulings, at the request of courts or tribunals of the Member States, on the interpretation of Union law or the validity of acts adopted by the institutions;
(c) rule in other cases provided for in the Treaties.
“The term “natural person” refers to a living human being, with certain rights and responsibilities under the law. By contrast, a “legal person”…is a group of people that is considered by law to be acting as a single individual.” (from the online Legal Dictionary) For example the EU itself or a company.
Point (c) covers any ends that may have been left loose elsewhere.
The EU and the CJEU will even ignore treaties if they don’t suit the EU’s agenda: no action was taken against illegal bailouts to save the Eurozone, nor were France and Germany challenged for defying the Growth and Stability Pact when it didn’t suit their economies. EU laws override those of national parliaments. Interpreting the law to accommodate a government’s wishes is characteristic of autocracies.
Article 47: The Union shall have legal personality.
Article 48: 2. The Government of any Member State, the European Parliament or the Commission may submit to the Council proposals for the amendment of the Treaties. These proposals may, inter alia, serve either to increase or to reduce the competences conferred on the Union in the Treaties. These proposals shall be submitted to the European Council by the Council and the national Parliaments shall be notified.
Article 48: 4. … The amendments shall enter into force after being ratified by all the Member States in accordance with their respective constitutional requirements.
They can hold referendums if their constitutions require that but normally the result will be ignored (France voted against the proposed constitution, written under the guidance of its own ex-president), Ireland had to vote again, Denmark’s voters rejected this Maastricht Treaty but they too were given a second chance to make the right choice (see Brexit Lexicon-3 ‘People’s Vote’).
Switzerland was unable to join the EU because referendums are frequent and intrinsic to its constitution, every new ‘competence’ acquired by the Commission would have to be put to the Swiss people for approval. The Irish constitution also requires a referendum but only for changes to the constitution; the people rejected both the Nice and Lisbon treaties but another people’s vote was held on both occasions to correct these aberrations. The French people voted to reject the EU Constitution, proposed by ex-president Giscard d’Estaing; they were not told to vote again, however the constitution was simply redrafted as the Lisbon Treaty.
Article 48: 6. The Government of any Member State, the European Parliament or the Commission may submit to the European Council proposals for revising all or part of the provisions of Part Three of the Treaty on the Functioning of the European Union relating to the internal policies and action of the Union.
Article 48: 7. Where the Treaty on the Functioning of the European Union or Title V of this Treaty provides for the Council to act by unanimity in a given area or case, the European Council may adopt a decision authorising the Council to act by a qualified majority in that area or in that case. …
Wouldn’t it make more sense for their leaders to sack the dissident ministers and appoint compliant ones rather than have a law which isn’t binding and is therefore a legal mirage?
Article 50: 1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
It’s that simple! Apparently.
Article 50: 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. …
So the EU is legally obliged to negotiate (which it says it is doing but that is doubtful under a mandate) and also to conclude an agreement; what can we do if it can’t or won’t? Some lawyers think that means the UK can legally cancel the Withdrawal Agreement.
Divorce Guidelines: Given what follows, we can treat “In these negotiations the Union will act as one. It will be constructive throughout…” with the disrespect it deserves. They cannot be certain of unity, though “constructive” sounds agreeable. Sadly, there will be those who cling to such phrases because they desperately want to believe that all will be well.
The ‘defence’ opens with: “Negotiations under Article 50 TEU will be conducted as a single package. In accordance with the principle that nothing is agreed until everything is agreed, individual items cannot be settled separately.
This makes nonsense of the claim that the negotiations will be open and transparent, at least on the EU side, as anything that is provisionally agreed and set aside could be changed before “everything is agreed”, so the negotiators won’t want to publish interim positions for fear of raising expectations that will not be met and criticisms that may be irrelevant.
Article 50: 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.
Article 50: 4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.
But the councils can still decide things that affect the unrepresented member.
Done at Maastricht on the seventh day of February in the year one thousand nine hundred and ninety-two.
CONSOLIDATED VERSION OF
THE TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION (TFEU)
Article 1: 1. This Treaty organises the functioning of the Union and determines the areas of, delimitation of, and arrangements for exercising its competences.
Union “competences” increase seemingly without limit; it has decided that none need be passed back down.
Article 1: 2. This Treaty and the Treaty on European Union constitute the Treaties on which the Union is founded. These two Treaties, which have the same legal value, shall be referred to as ‘the Treaties’.
But we should not call them the Constitution because the French rejected that idea in their referendum.
The CJEU, in a formal Opinion delivered in 1991, described the (then) European Economic Community (EC) Treaty as a “constitutional charter”. In 2008 the Court pronounced that “the obligations imposed by an international agreement cannot have the effect of prejudicing the constitutional principles of the EC Treaty”.
Article 2: 1. 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….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.
So the Member States get only leftovers from the EU’s table, and require EU permission to eat them.
Article 2: 3. The Member States shall coordinate their economic and employment policies within arrangements as determined by this Treaty, which the Union shall have competence to provide.
Total control then, signalled by “shall coordinate…”.
Article 2: 6. The scope of and arrangements for exercising the Union’s competences shall be determined by the provisions of the Treaties relating to each area.
In other words, “shall be determined by” the Commission, which they don’t want to make so explicit, because they have given themselves the right to interpret the Treaties and set up the CJEU to confirm this.
Countries linked by bilateral agreements to the EU, including Switzerland and Norway, sign agreements, for example the EEA and EFTA, which bind them to accept the rules and regulations in place at the time they sign. These are known as “static agreements”. However, there is pressure from the EU to turn these into “dynamic agreements” under which signatory countries would have to accept all new developments in EU law, whether rules from Brussels or rulings from the CJEU, as they come into force.
Member states of the EU are obliged to accept laws and rulings as they are made, that is what they signed up to; the proposal is that bilateral agreements with states outside the EU should also be dynamic. We have seen that negotiations between the EU and the UK over their future relationship include an insistence that any bilateral agreement should be dynamic in this sense.
Article 3: 1. The Union shall have exclusive competence in the following areas:
(a) customs union;
(b) the establishing of the competition rules necessary for the functioning of the internal market;
(c) monetary policy for the Member States whose currency is the euro;
(d) the conservation of marine biological resources under the common fisheries policy;
(e) common commercial policy.
Article 3: 2. The Union shall also have exclusive competence for the conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union or is necessary to enable the Union to exercise its internal competence, or in so far as its conclusion may affect common rules or alter their scope.
Comprehensive competence then, at least in law, even though they struggle in practice to apply this.
“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 4: 1. The Union shall share competence with the Member States where the Treaties confer on it a competence which does not relate to the areas referred to in Articles 3 and 6.
Shared competence seems very vague, it reads as if the member states can do what they like but in fact the Union makes sure it has control over everything that matters to them (see the quotation just above).
Article 4: 2. Shared competence between the Union and the Member States applies in the following principal areas:
(a) internal market;
(b) social policy, for the aspects defined in this Treaty;
(c) economic, social and territorial cohesion;
(d) agriculture and fisheries, excluding the conservation of marine biological resources;
(f) consumer protection;
(h) trans-European networks;
(j) area of freedom, security and justice;
(k) common safety concerns in public health matters, for the aspects defined in this Treaty.
Sounds good, at first glance.
Article 5: 1. The Member States shall coordinate their economic policies within the Union. To this end, the Council shall adopt measures, in particular broad guidelines for these policies.
Article 5: 2. The Union shall take measures to ensure coordination of the employment policies of the Member States, in particular by defining guidelines for these policies.
Article 5: 3. The Union may take initiatives to ensure coordination of Member States’ social policies.
For a law this is very open ended and probably meaningless, or at least open to challenge. Ensuring coordination by means of guidelines seems weak but the Union “may take initiatives”, which gives them plenty of room to rule, with or without effective coordination.
Not much ‘competence’ is left with the member states because the EU’s ‘Principle of Subsidiarity’ (see Treaties-6)is barely honoured by them. In case anyone still believes that the EU leaves much to the competence of its member states, Article 5 should disabuse them
Article 6: The Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States. The areas of such action shall, at European level, be:
(a) protection and improvement of human health;
(e) education, vocational training, youth and sport;
(f) civil protection;
(g) administrative cooperation.
Article 6 too; these look like lists where the Union has ambitions to control.
Article 7: The Union shall ensure consistency between its policies and activities, taking all of its objectives into account and in accordance with the principle of conferral of powers.
This seems to mean that whatever its objectives the Union will acquire the powers it thinks necessary to achieve them?
The growing aggregation to itself by the EU of “competences” has deprived the UK of the ability, and even the right, to set standards and embed these standards in legislation that the British government may see as relevant to circumstances in the UK. The EU is constructed deliberately so that competences extracted from member states, or passed upwards by them, are irreversible (what goes up is not allowed to come down).
Article 9: In defining and implementing its policies and activities, the Union shall take into account requirements linked to the promotion of a high level of employment, the guarantee of adequate social protection, the fight against social exclusion, and a high level of education, training and protection of human health.
They certainly haven’t been doing a good job of promoting the first thing (employment) which will have diminished the results for most of the rest. (See Treaties-8 for more on “take into account”.) Adding to this phrase “requirements linked to the promotion…” removes from the Union all legal responsibility for these issues.
Article 10: In defining and implementing its policies and activities, the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.
That is no doubt politically necessary, but what does “the Union shall aim” mean in practice? Nothing resembling a legal commitment, of course.
Article 191: 1. Union policy on the environment shall contribute to pursuit of the following objectives:
There’s that phrase again, “shall contribute to”. Later we note that “the Union shall take account of…”. And later still, under point 4, we note that:
The previous subparagraph shall be without prejudice to Member States’ competence to negotiate in international bodies and to conclude international agreements.
Point 4 opens with, “Within their respective spheres of competence”. Now the Union determines who has which competences and, in earlier articles (TEU Articles 4-9, see above) member states, even when they are left with a competence, have to support and promote the interests of the EU, which surely does prejudice such competence, as they are not free to do as they please, according to the Treaties.
The TEU confers on the Union an exceptional horizontal competence to cover in the UK Withdrawal Agreement all matters necessary to arrange the withdrawal. This may be the most important area in which the EU demonstrates its obsession with federalism. They have ensured that few areas remain in which the EU does not have exclusive competence. Powers to act, once passed up from the member states, are never returned. Separation of powers is formally built into the EU’s treaties but is consistently ignored as it clearly conflicts with the drive towards a complete and dominant Union.
Article 195: 1. The Union shall complement the action of the Member States in the tourism sector, in particular by promoting the competitiveness of Union undertakings in that sector.
Article 195: 2. The European Parliament…shall establish specific measures to complement actions within the Member States…
Without any specific meaning “complement” is a useful—and frequently used—word in the treaties. The Commission will decide what this means and the CJEU will be charged with defending their use. And the Parliament will be obliged to go along with any decision. Expressions that include “the European Parliament shall..” are regularly used to put the EP in its place.
Promoting new forms of citizens’ participation will increase legitimacy and trust in our Union and complement its representative democracy.
This may increase some people’s trust—that is the purpose of propaganda—but it won’t “increase legitimacy” since that would require some fundamental reform, not just a “complement” to their heavily diluted notion of democracy.
Article 197: 1. Effective implementation of Union law by the Member States, which is essential for the proper functioning of the Union, shall be regarded as a matter of common interest.
Article 197: 3. This Article shall be without prejudice to the obligations of the Member States to implement Union law or to the prerogatives and duties of the Commission.
Imagine any regular court arguing over the meaning of “common interest”. But such matters will be dealt with by the CJEU so no imagination will be required.
Article 207: 3…The Commission shall make recommendations to the Council, which shall authorise it to open the necessary negotiations. The Council and the Commission shall be responsible for ensuring that the agreements negotiated are compatible with internal Union policies and rules.
If we assume that “it” in the first line refers to the Council then this will be the body authorised to open negotiations under the Common Commercial Policy, subject as always to the final judgement of the Commission, with any support that may be needed from the CJEU.
The honourable judges of the Court of Justice of the European Union (CJEU) have shown themselves to be above natural justice and indeed any other law than their own. Union law and its guardian, the CJEU, are the means by which a federal government continues to be stealthily imposed on the citizens of Europe and their democratically elected governments.
Article 209: 1. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall…
This opener is common to many articles, which serve to constrain the actions and entitlements of the Parliament. (We look at legislative procedures, ordinary, special and others, in Treaties-8.)
Article 216: 2. Agreements concluded by the Union are binding upon the institutions of the Union and on its Member States.
The Withdrawal Agreement with the UK is binding so long as the UK is a member or in the transition period, but the EU wishes to extend this to any future agreement with the UK, and so to keep the UK under the judicial wing of the CJEU.
The EU has made it clear that it expects everything to be tied up in law and so subject to the remit of the Court of Justice of the European Union. For example, from the Withdrawal Agreements (Article 166):
“The decisions adopted by the Joint Committee shall be binding on the Union and the United Kingdom, and the Union and the United Kingdom shall implement those decisions. They shall have the same legal effect as this Agreement.”
Article 246: In the event of resignation, compulsory retirement or death, the President shall be replaced for the remainder of his term of office.
In the event of resignation, compulsory retirement or death, the High Representative of the Union for Foreign Affairs and Security Policy shall be replaced, for the remainder of his or her term of office…
Article 247: If any Member of the Commission no longer fulfils the conditions required for the performance of his duties or if he has been guilty of serious misconduct, the Court of Justice may, on application by the Council acting by a simple majority or the Commission, compulsorily retire him.
Article 248: The President may reshuffle the allocation of those responsibilities during the Commission’s term of office. The Members of the Commission shall carry out the duties devolved upon them by the President under his authority.
Clearly the President shall not be a woman, except that she now is (our emphases above). Probably they need to update their treaties to bring them into line with today’s realities. Is it by accident or design that the High Representative could be a woman while the others are specified to be men (even though at least one is not)?
“In all its activities, the Union shall aim to eliminate inequalities, and to promote equality, between men and women.” (TFEU Article 8)
Article 250: The Commission shall act by a majority of its Members.
Article 253: The Judges shall elect the President of the Court of Justice from among their number for a term of three years. He may be re-elected.
Article 258: If the Commission considers that a Member State has failed to fulfil an obligation under the Treaties, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations.
If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice of the European Union.
Article 259: A Member State which considers that another Member State has failed to fulfil an obligation under the Treaties may bring the matter before the Court of Justice of the European Union.
Article 260: 1. If the Court of Justice of the European Union finds that a Member State has failed to fulfil an obligation under the Treaties, the State shall be required to take the necessary measures to comply with the judgment of the Court.
The term “required” confirms that the purpose of the CJEU is to give legal weight and support to decisions of the Commission made on behalf of the Union. There is more detail, of which we quote selections below.
The European Union is primarily a political project. Union law and its guardian, the CJEU, are the means by which a federal government continues to be stealthily imposed on the citizens of Europe and their democratically elected governments.
Article 263: The Court of Justice of the European Union shall review the legality of legislative acts, of acts of the Council, of the Commission and of the European Central Bank, other than recommendations and opinions, and of acts of the European Parliament and of the European Council intended to produce legal effects vis-à-vis third parties. It shall also review the legality of acts of bodies, offices or agencies of the Union intended to produce legal effects vis-à-vis third parties.
It shall for this purpose have jurisdiction in actions brought by a Member State, the European Parliament, the Council or the Commission on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or of any rule of law relating to their application, or misuse of powers.
This, deep in the TFEU, confirms that the role of the CJEU is to ensure that Commission proposals, directives, etc. are adopted and applied, over and above any differences expressed by Member States.
Article 266: The institution, body, office or entity whose act has been declared void or whose failure to act has been declared contrary to the Treaties shall be required to take the necessary measures to comply with the judgment of the Court of Justice of the European Union.
Article 267: The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning:
(a) the interpretation of the Treaties;
(b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union;
Article 269: The Court of Justice shall have jurisdiction to decide on the legality of an act adopted by the European Council or by the Council…
Article 271: The Court of Justice of the European Union shall, within the limits hereinafter laid down, have jurisdiction in disputes concerning:
(d) the fulfilment by national central banks of obligations under the Treaties… If the Court finds that a national central bank has failed to fulfil an obligation under the Treaties, that bank shall be required to take the necessary measures to comply with the judgment of the Court.
In case anyone still believes that the CJEU is concerned with ‘justice’ in any broader sense than as defined in these Treaties. We know that to the EU “legality” means conformity with the Treaties and such conformity can be enforced directly not just through the national governments.
The EU acquis communautaire (the complete set of EU laws) dominates huge areas of everyday life. The rules are made by a legislature in which citizens play no part.
“No longer is European law an incoming tide flowing up the estuaries of England. It is now like a tidal wave bringing down our sea walls and flowing inland over our fields and houses – to the dismay of all.” Lord Denning in 1974.
Article 272: The Court of Justice of the European Union shall have jurisdiction to give judgment pursuant to any arbitration clause contained in a contract concluded by or on behalf of the Union, whether that contract be governed by public or private law.
Article 280: The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may amend the provisions of the Statute, with the exception of Title I and Article 64. The European Parliament and the Council shall act either at the request of the Court of Justice and after consultation of the Commission, or on a proposal from the Commission and after consultation of the Court of Justice.
So even the Parliament is subject to the jurisdiction of the CJEU, under the wing of the Commission. Some useful definitions follow:
Article 288: To exercise the Union’s competences, the institutions shall adopt regulations, directives, decisions, recommendations and opinions.
A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.
A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed…
A decision shall be binding in its entirety.
Recommendations and opinions shall have no binding force.
Article 290: 1. A legislative act may delegate to the Commission the power to adopt non-legislative acts of general application to supplement or amend certain non-essential elements of the legislative act.
Since only the Commission may propose legislative acts, this Article allows it to give itself the required power. (See Treaties-8 for definitions of ordinary and special legislative acts.)
Article 291: 1. Member States shall adopt all measures of national law necessary to implement legally binding Union acts.
That sums it up neatly.
EU (Roman) law overrules and undermines UK (Common) law. While Britain remained in the EU (or if it leaves under some ‘soft-Brexit’ formula) we were subject to the judgements of a ‘superior’ court, even when these matters were purely local.
Article 13 of the Treaty on European Union obliges the EU’s institutions to act within the limits of their competences under the treaties; however, these competences are relentlessly expanding with every decision of the Commission and every judgement of the CJEU. The CJEU is mandated to make judgements that further the aims of the EU’s treaties regardless of the best interests of member states.