As a UK citizen living in Brussels, I have always regretted the decision we made to leave the EU. At the same time, I knew that being a member of the EU meant acknowledging the supremacy of EU Law in certain policy areas. There was no getting round this.
One example makes this clear, the so-called Factortame case. In 1988, while Mrs Thatcher was still Prime Minister, the UK Parliament passed a Merchant Shipping Act which restricted the right of foreign-owned vessels to ship in British waters. Yes, disputes about fishing rights were a big issue then which caused strong feelings, just as they do now. A Spanish company brought an action in the British courts claiming that the act passed by Parliament was incompatible with the European Communities Act. And the courts agreed with the Spanish company.
Lord Justice Neill in the High Court explained the ‘new state of affairs’ which had followed from UK entry to what was then the European Economic Community. He spelt it out by saying that ‘the High Court now has a duty…where there is a conflict, to prefer the Community law to national law.’ The case went to the House of Lords and the Law Lords agreed to ‘disapply’ – for the first time in British history – part of a Westminster statute as conflicting with Community law.
As the judge himself recognised, the primacy of EU Law is the cornerstone of the European Union, making possible the whole body of EU Law as something which is binding and enforceable. Without it, to give just one example, the EU’s environmental legislation would be much weaker.
As the endless summits over climate change, from Kyoto to Glasgow, show, it is all very well proclaiming an agreement between nations or making a series of much-trumpeted pledges about what you will do, but there has to be an effective means of enforcement. Targets have to become law and be binding if they are not just to be pious hopes. The EU recognises this.
In recent weeks, however, it has seemed as though one or two member states are questioning the primacy of EU Law in any area at all. Instead, the supreme law of their own nation, they argue, must always take precedence. It makes one wonder what were they thinking when they went through the years of negotiations about accession, in which they had to prove that they had the administrative competence to apply EU Law.
The primacy of EU Law ensures the effective operation of the single market from which these member states benefit. EU Law guarantees the so-called ‘four freedoms’ through which their citizens can travel, live and work in other member-states of the Union without difficulty, as tens of thousands of them do.
Perhaps for this very reason they are not announcing that they intend to leave the EU or that they will follow the UK in asking their citizens whether they want to leave. Instead, they prefer to suggest that they’ve joined something else, where EU Law somehow exists on a ‘take it or leave it’ basis. But a law cannot work effectively unless it can be enforced.
Whether it’s individual member-states ignoring European law or individual citizens ignoring national law, there’s no law that you can simply take into your own hands.