Supremacy Of EU Law: Direct Effect And Direct Applicability Limiting The’s Control
There has been continuing debate over whether the United Kingdom (UK) will be in a more advantageous position by leaving the European Union (EU), or whether remaining in the EU is the best option. Within this essay, the element of the UK regaining control by leaving the European Union will be discussed, focusing on what a relationship between member states and the Union looks like and the consequences of membership, the extent and in which areas States lose control, and the freedoms they do not have, which they otherwise would have without membership in the EU. There are many strong arguments to highlight how much the United Kingdom can gain from withdrawing from the EU, however, arguably, do what the member States gain from membership greatly outweigh the detriments?
The background to the UK’s membership and the relationship between the UK and the EU
Firstly, we must look at the legal relationship between the EU and the UK. The UK was reluctant to follow in the footsteps of countries such as France and Belgium by joining the beginning foundations of the EU, which was the creation of the European Coal and Steel Company. It was only until 1961 that the UK made its first application to join the EU (known as the European Economic Community at the time), and then became a member in 1973. One could argue that even though the UK were originally skeptical about the concept of supranationalism, leading to their delay in joining, ultimately the UK envisaged more positive outcomes to gain through membership as they continued to apply for membership even after being vetoed by the French Government in 1963 and 1967. Additionally, the EU can currently be identified as an international organisation as it satisfies the 5 requirements; it was created by an international agreement, has at least one autonomous organ, public international law directly regulates its activities, it has a prescribed field of activity and enjoys international legal personality. Therefore, we can define the legal relationship between the United Kingdom and other member states, and the EU, as one between an international organisation and member states. Also, Kaczorowska-Ireland notes that “member states are required to co-operate sincerely with EU institutions…and in the spirit of solidarity assist each other in extreme circumstances such as natural or man-made disasters, terrorist attacks and armed aggression”.1 Alina Kaczorowska-Ireland European Union Law (4th edn, Routledge 2016) 208 Within membership the UK incur obligations under this principle of solidarity as they are bound to supporting any member state during the extreme crisis, and essentially do not have control over choosing to do so or not. On the other hand, this harmony can be seen as an advantage of being a member state in the Union as it offers the UK protection from other member states and encourages a positive relationship between the member states.
Loss of control through competences
Moreover, a consequence of membership in the Union can be seen through the restrictions imposed by the Treaty on the Functioning of the European Union (TFEU).2 Consolidated Version of the Treaty on the Functioning of the European Union (TFEU)  C 326/51 The Treaty of Lisbon was created to essentially create institutional and legal unity, as well as rectify the complications of the prior legislative process. It codifies the competencies and power that the EU possesses over member states including the UK, but it also sets out restrictions as to the limit of control the Union holds over its member states. The term competence “refers to the responsibility for the decision-making in a particular policy area.”3 Alina Kaczorowska-Ireland European Union Law (4th edn, Routledge 2016) 363 There are some competencies that are exclusive to the EU, meaning they have sole control and member states have given up their right to exercise their powers in a certain area.4 Consolidated Version of the TFEU Union  C 326/51 A special feature of the EU is that the European Court of Justice (ECJ) declared many of its competencies to be of an exclusive nature, often justifying this conclusion by relying on the principle of effectiveness in Case 22/70, Commission v Council (ERTA).5  ECR 263 The right to establish a customs union and an internal market are two of the EU’s exclusive competences. The customs union is an arrangement that guarantees the unity of tariffs with respect to goods entering the internal market; free movement of goods is what the customs union is highly concerned with. The internal market is concerned with abolishing tariffs to trade between member states whilst also regulating the quality of goods and services, as well as allowing the free movement of goods, people and capital. The regulation of the quality of goods guarantees that they are safer for consumption, such as making sure food is free from pesticides. However this has not always been proven effective – take the horsemeat scandal of 2013 as evidence of this. Despite its uses, the UK may be seen at a disadvantage, as being part of the internal market within the EU means that the UK are limited to what they can do with third parties and how they can negotiate trade deals with nonmember states. From leaving the Union, the UK would ultimately have the freedom and control that they do not currently have, to decide how they wish to trade with any country, with the possibility of getting lower tariffs and better deals from them. There are also shared competencies in which the EU and the UK can both act in the areas. Initially, this seems like the UK and other member states have equal power, however, there is a clause which states that member states may not act on shared competence if the EU has acted. Thus, the UK could regain control over the areas included in shared competence by leaving the EU. Also, “according to international law, all the competencies belong to the state and no sacrifice of sovereignty can be presumed unless it is expressly established; consequently, an international organization enjoys all and only the competencies explicitly mentioned by the founding Treaty.”6 Andrea Biondi, Piet Eeckhout, and Stefanie Ripley EU Law after Lisbon (1st edn, OUP 2012) 86 This statement supports the notion that the EU are not allowed to go beyond the competences conferred unto them by the member states,7 Consolidated Version of the Treaty on European Union  OJ C326/18 therefore arguably member states including the UK, regain control in this way. However, Bruno de Witte argues that the member states of the EU have become ‘strange subjects’ of international law as a result of having transferred many of their powers to the Community and in this sense ‘are no longer sovereign States to the same extent as other States in the world’.8 Dr Aurel Sauri, ‘The Europeanisation of International Law / Jan Wouters, André Nollkaemper and Erika de Wet’ < http://www.aurelsari.co.uk/2010/09/europeanisation-of-international-law/> accessed on 10 December It is interesting that Bruno de Witte describes member states in this manner as the term ‘strange subjects’ perhaps has degrading and humiliating connotations; the UK may be viewed by many as the EU’s puppet. Consequently, this supports the notion that the UK could regain a lot of power and control by leaving the EU and eliminating the principle of conferral, instead of acting as inferior ‘subjects’ to the EU.
Direct effect and Direct Applicability limiting the UK’s control
In addition, the principle of the direct effect of EU law may provide further proof of the UK and member states losing control within the membership of the EU. The European Court of Justice (ECJ) defined direct effect in the leading case Case 26/62, Van Gend en Loos9  ECR 3 , summarising that: “[EU law] … not only imposes obligations on individuals but it is also intended to confer upon them rights which national courts must protect”. The main importance of direct effect is that it permits an individual to appeal against a decision when a member state has interpreted EU law incorrectly or has implemented EU law correctly but applied it incorrectly. There are two types of direct effect – horizontal and vertical. The effectiveness of EU is limited in a situation of vertical direct effect which is when an individual can rely on a provision of EU law in proceedings against a member state. The ECJ implementing rules such as imposing a duty on national courts to interpret national law in conformity with EU law really enhances the control given to the EU. If the UK were to leave the EU they would be able to regain control over making decisions compliant to their own national laws, and without the added step of consulting EU laws. Further, the doctrine of direct applicability touches on the idea of EU supremacy over member states, including the UK. In the UK, international agreements have effect in domestic law only if they have been incorporated by an Act of Parliament; the European Communities Act 1972 incorporates the EU Treaties and provides for the direct applicability and effect of EU law. Case 6/64 Costa v ENEL10  ECR 593 – 594 greatly demonstrates how easy it can be to declare EU law as a priority over national laws that clash with EU laws and set the tone of the ECJ’s future decisions regarding its view on the EU’s supremacy (which can be seen in Melloni, where the ECJ held that a member state cannot apply a higher level of protection of fundamental rights than that established under EU law.11  Q.B.1067 Essentially EU laws are currently superior to the national laws in the UK as the courts have to comply with EU laws if there is a conflict between the two, and “from the perspective of the ECJ, the supremacy of EU law is unconditional and absolute. All EU law prevails over all national laws within the scope of EU law”12 Alina Kaczorowska-Ireland European Union Law (4th edn, Routledge 2016) 473. The UK could regain its control over the successful application of its laws by leaving the Union.
Potential freedoms and control the UK could attain in deciding on the free movement of goods, people and workers
Furthermore, the freedoms the UK could have in deciding its laws on the free movement of goods and workers would be affected by the UK’s exit from the Union. The term ‘goods’ can be defined through Case 7/68, Commission v Italy as ‘products which can be valued in money and which are capable of forming the subject of commercial transactions.13  ECR 423 This has proven quite a broad definition evidenced by how it was applied in Case C-2/90 Commission v Belgium, where tipping waste (whether recyclable or not), was held to be classified as goods.14  ECR I-4431 Currently the UK are bound by obligations imposed on them by EU law to ensure they do not enforce custom duties and charges on imports and exports, to have equivalent effect.15 Consolidated Version of the TFEU Union  C 326/60 Moreover, Article 110 TFEU prohibits direct or indirect taxes that apply internally within member states and discriminate against foreign products.16 Consolidated Version of the TFEU Union  C 326/93 Both articles 30 and 110 are examples of fiscal barriers which mean that the UK for example cannot impose a customs duty on an item ordered from a website in Germany (a fellow member state), and shipped to the UK – this applies vice versa. This is arguably positive and helpful for the UK and other member states as it encourages financial interactions between member states and trades, strengthening the single common integrated market. However, the UK could be set to regain control over this area of movement of goods by leaving the Union, through the eradication of the further boundaries enforced by quantitative restrictions. Quantitative restrictions are defined in Case 2/73 Geddo v Ente as ‘ measures which amount to a total or partial restraint of, according to the circumstances, imports, exports or goods in transit’.17  ECR 865 It initially seems that the UK cannot totally or partially restrain imports, exports or goods in transit from other member states whenever they please to ensure copious free movement of goods between member states, limiting its freedoms. However, Article 36 of the TEU states that ‘a member state is entitled to impose prohibitions on imports justified on grounds of public morality, public policy or public security…’18 Consolidated Version of the TFEU Union  C 326/61 which was supported in Henn v Darby where the ECJ concluded that each member state is entitled to set its own standards of public morality, therefore the pornographic films could not be brought into the UK as there was no lawful trade in those items.19  ECR 3795 Evidently, although there are duties the UK is bound to follow under the EU, they still maintain control over the areas stated in Article 36, but this could still be viewed as not enough. In addition, the UK could seek to regain more control over the free movement of workers. The primary definition of a worker can be found in Case 66/85 Lawrie-Blum v Land Baden-Württemberg; a worker is a ‘person who performs services of some economic value under the direction of another person in return for remuneration.’20  ECR 2121 Free movement of workers within the Union allows for more efficient allocation of workers as they can be placed where they are most required economically, to benefit each country they are moved to and from. The free movement of workers in the UK has been a controversial topic, however, with seventy-three percent of ‘Leave’ Brexit voters voting to leave the EU due to their main concerns being about immigration and free movement of people and workers, according to the Independent newspaper article.21 May Bulman, ‘Brexit: People voted to leave EU because they feared immigration, major survey finds’ The Independent (London, 28 June 2017) < https://www.independent.co.uk/news/uk/home-news/brexit-latest-news-leave-eu-immigration-main-reason-european-union-survey-a7811651.html> accessed on 12 December 2019
If the UK cut ties with the EU they can be expected to gain freedoms concerning how to regulate the free movement of people and workers, which they otherwise cannot obtain whilst remaining in the EU. The UK would gain the freedom and control to perhaps select only the most skilled and intelligent to be allowed to work in the UK, thus prospering communities, businesses and ultimately the economy.
To conclude, there are strong arguments and reasons supporting the notion of the EU being a supreme and dominant force over the UK and member states, notably due to the principles of direct effect and direct applicability, therefore the UK will ultimately gain power in its individuality by leaving the EU. The UK may regain control over the competencies currently exclusively conferred to the EU, as well as over the shared competencies by leaving, thus having the ability to have power over their monetary policies and trading with other countries without membership in the EU. Also the UK may expect to gain power over its own laws on the free movement of goods as well as workers and people. There are clear areas in each where the UK could potentially flourish as a country without the domineering force of the EU, however, it can be strongly argued that it is in the UK’s best interest to remain in the EU due to the customs union and internal market providing much more of a benefit than a detriment to the UK and the overall harmony and unity provided by the Union.
- Case 22/70, Commission v Council (ERTA) (ECR).
- Case 7/68, Commission v Italy (1968).
- Case C-2/90 Commission v Belgium (1992).
- Case 6/64 Costa v ENEL (1964).
- Case 2/73 Geddo v Ente (1973).
- Case 66/85 Lawrie-Blum v Land Baden-Württemberg (1986).
- Case 26/62, Van Gend en Loos (ECR).
- Consolidated Version of the Treaty on European Union. (2008 ). C326/18.
- Consolidated Version of the Treaty on the Functioning of the European Union (TFEU). (2009). C 326/51.
- Henn v Darby (1979).
- Stefano Melloni v Ministerio Fiscal (Q.B. 2013).
- Andrea Biondi, P. E. (2012). EU Law after Lisbon. OUP.
- Bulman, M. (2017, June 28). ‘Brexit: People voted to leave EU because they feared immigration, major survey finds’. Retrieved from The Independent: https://www.independent.co.uk/news/uk/home-news/brexit-latest-news-leave-eu-immigration-main-reason-european-union-
- Dr Aurel Sauri. (2009). ‘The Europeanisation of International Law / Jan Wouters, André Nollkaemper and Erika de Wet’ .
- Kaczorowska-Ireland, A. (2016). European Union Law. Routledge.