The European Union and the United Kingdom

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What is now referred to as The European Union (EU) is a multi-national legal entity which owes its existence and its powers and duties to a succession of treaties.  The EU is neither a state nor a federation of states but it acquired legal personality as a result of the Lisbon Treaty (2007).  The Lisbon Treaty (2007) came into force on 1st December 2009.

Following the Lisbon Treaty of 2007, it is now possible to refer to the “consolidated versions” of the “Treaty on European Union” and the “Treaty on the Functioning of the European Union.”  On this web page, these will be referred to as TEU and TFEU respectively.

During two World Wars (1914-19) and (1939-45) the U.K. had made a massive contribution.  The original purpose or vision of those instrumental in the creation of the European Communities was to try to prevent future wars within Europe by controlling raw materials such as coal and the production of steel.

Because of membership of the EU, nationals of member states are now "Citizens of the Union."  They enjoy the rights given to them by the various Treaties (e.g. the free movement of workers).  The EU has improved the rights of Citizens - (e.g. by the equal treatment for men and women provisions) - and they have enjoyed the economic benefits of membership.

The EU is the largest trading bloc in the world with a population exceeding 490 million.  It is possible that membership will grow in the future but applicant states must have democratic institutions, guarantee the rule of law and protect human rights.

The EU should not be confused with certain other organisations such as The Council of Europe; The European Free Trade Area (EFTA) and the European Economic Area (EEA).  The European Court of Human Rights comes under the aegis of the Council of Europe.  The Court of Justice of the EU is the judicial body of the European Union.

C. The U.K. Accession to the EU

United Kingdom (UK) is linked politically with most of continental Europe through membership of the European Union (EU).  The Treaty of Paris 1951 created the “European Coal and Steel Community” (ECSC) which came into being in July 1952 with a limited lifetime of 50 years, ending  23^rd July 2002.  The Treaties of Rome 1957 created additional “communities” – the “European Economic Community" (later renamed the European Community) and the European Atomic Energy Community “Euratom.” 

U.K. membership of those communities commenced on 1st January 1973.  The European Communities Act 1972 was passed to give legal  force within the legal system of the United Kingdom to the Treaties and other community law deriving from the treaties.

Since 1957 there have been numerous structural changes as well as a gradual accretion of power from the Member States to what is, since the Treaty on European Union (Maastricht) 1992, referred to as the “European Union” (EU).

D. Membership of the EU

Since 1^st January 2007, membership of the EU stands at 27 member states:-

From 25^th March 1957: Belgium, France, Germany, Italy, Luxembourg, Netherlands.  [These were the original “Six”].

From 1^st January 1973: Denmark, Republic of Ireland, United Kingdom

From 1^st January 1981: Greece

From 1^st January 1986: Portugal, Spain

From 1^st January 1995: Austria, Finland, Sweden

From 1^st May 2004:      Cyprus, Czechoslovakia, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovak Republic, Slovenia

From 1^st January 2007: Bulgaria, Romania

[Note: The former Federal Republic of Germany joined in 1973 and the former German Democratic Republic became a member on 3^rd October 1990].

[Note: Greenland joined on 1^st January 1973 but ceased to be a member in 1985].

There is also a European Economic Area

E. Background to the Lisbon Treaty of 2007

An attempt to have a "European Constitution" was put on the political "back-burner" following NO votes in referenda held in France (May 2005) and The Netherlands (June 2005).   For further information about the European Constitution which was proposed see Institutional Reform

In June 2007, a further agreement was reached between EU Heads of Government about a "Reform Treaty" amending some of the existing Treaties which set up and govern the EU.  An Inter-Governmental Conference (IGC) was set up to prepare the amending treaty and the text was agreed at a meeting between Heads of Government held in Lisbon in October 2007. 

On 13^th December 2007 the Treaty of Lisbon was signed.

The Lisbon Treaty is not to be confused with the European Charter of Fundamental Rights.

The Treaty of Lisbon amended existing Treaties such as the Treaty on European Union and the Treaty establishing the European Community.  The Lisbon Treaty had to be ratified by the Member States in accordance with their respective constitutional requirements and it could not come into force until the first day of the month following the deposit of the last instrument of ratification.  The original plan was that it would enter into force on 1 January 2009.  However, that was not achieved, mainly due to a NO vote in the first Irish referendum.  In October 2009, after a second referendum, the Irish Republic acceded to the Treaty.  The final State to ratify the Treaty was the Czech Republic whose President signed it on 3rd November 2009.

Article 6 of the Treaty of Lisbon is important in that it states that the “The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000 (as adapted at Strasbourg on 12 December 2007), which shall have the same legal value as the Treaties.”  In relation to the U.K. and the Charter of Fundamental Rights, a Protocol to the Lisbon Treaty seeks to prevent the European Court of Justice (or any UK court) finding that laws in the UK are inconsistent with the fundamental rights.

Furthermore, the Treaty of Lisbon enables the EU to accede to the European Convention on Human Rights and Fundamental Freedoms.

Britain ratified the Lisbon Treaty on 18th July 2008 and the Treaty has effect in English law by virtue of the European Union (Amendment) Act 2008.

 By TEU Art 13, the Union's institutions shall be:

the European Parliament,

the European Council,

the Council,

the European Commission (hereinafter referred to as ‘the Commission’),

the Court of Justice of the European Union,

the European Central Bank

the Court of Auditors.

The TEU Art 13 requires each institution to act within the limits of the powers conferred on it in the Treaties, and in conformity with the procedures, conditions and objectives set out in them. The institutions are directed to practice mutual sincere cooperation.

The provisions relating to the European Central Bank and the Court of Auditors and detailed provisions on the other institutions are set out in the Treaty on the Functioning of the European Union.

The European Parliament, the Council and the Commission are assisted by an Economic and Social Committee and a Committee of the Regions acting in an advisory capacity.

The European Parliament

European Parliament

See TEU Art 14

See TFEU Arts 223-234

The European Parliament is made up of representatives of the Union's citizens up to a maximum of 750 representatives (plus The President).  Representation of citizens is “degressively proportional” with a minimum threshold of six members per Member State and a maximum of 96.

Members of the European Parliament are elected for a term of five years by direct universal suffrage in a free and secret ballot.

The European Parliament elects its President and its officers from among its members.

 Since 1979, the Parliament has been directly elected.  It exercises democratic supervision over the other EU institutions.

The European Council

European Council

See TEU Art 15

See TFEU Arts 235-236

The European Council provides the Union with the necessary impetus for its development and defines the general political directions and priorities thereof. It may not exercise legislative functions.

The European Council consists of the Heads of State or Government of the Member States, together with its President and the President of the Commission. The High Representative of the Union for Foreign Affairs and Security Policy takes part in its work.

The European Council must meet every 6 months - (meetings are convened by its President).  The TEU provides that other government Ministers may attend to assist a member of the European Council.  A member of the Commission may attend to assist the President of the Council.

Except where the Treaties provide otherwise, decisions of the European Council are taken by consensus.

The European Council elects its President, by a qualified majority, for a term of two and a half years, renewable once. In the event of an impediment or serious misconduct, the European Council can end the President's term of office in accordance with the same procedure.

A very important post is that of the President of the European Council.  In many media articles the holder of this post has been inaccurately referred to as “The President of Europe.”  Contrary to views expressed in some quarters, the European Union has not become a State in its own right (e.g. like a federation such as the U.S.A.) though it is true to say that, since the Lisbon Treaty, the EU has a legal persona.

The President of the European Council:

(a) shall chair it and drive forward its work;

(b) shall ensure the preparation and continuity of the work of the European Council in cooperation with the President of the Commission, and on the basis of the work of the General Affairs Council;

(c) shall endeavour to facilitate cohesion and consensus within the European Council;

(d) shall present a report to the European Parliament after each of the meetings of the European Council.

The President of the European Council shall, at his level and in that capacity, ensure the external representation of the Union on issues concerning its common foreign and security policy, without prejudice to the powers of the High Representative of the Union for Foreign Affairs and Security Policy.

The President of the European Council may not hold a national office.

The Council

Council

See TEU Art 16

See TFEU Arts 237 - 243

The Council consists of a representative of each member state at ministerial level.  The representative has to be able to commit the government of the member state in question.

The Council acts jointly with the European Parliament to exercise legislative and budgetary functions.  It carries out policy-making and coordinating functions as laid down in the Treaties.

The Council acts by “qualified majority” except where the treaties provide otherwise.  [“For “qualified majority” see TFEU Art 238].  The definition of “qualified majority” will change from 1st November 2014 and meanwhile certain “transitional provisions” apply – see TEU Art 16(4) and 16(5).

The Council meets in different “configurations” – see TFEU Art 236.

There is also a Committee of Permanent Representatives (COREPER) which is responsible for preparing the work of the Council.

The Presidency of Council configurations (other than Foreign Affairs) is held by Member State representatives in the Council on a rotating system set out in TFEU Art 236.

The European Commission

Commission

See TEU Arts 17

See TFEU Arts 244 - 250

The Commission is required to promote the general interest of the EU and to take appropriate initiatives to that end.  It is the Commission which is tasked with ensuring the application of the Treaties and of measures adopted pursuant to the Treaties.  Commission also oversees the application of EU law under the control of the Court of Justice of the EU.

Commission also executes the budget and manages programmes.  It exercises coordinating, executive and management functions, as laid down in the Treaties.  The Commission work programme may be seen here.

With the exception of the common foreign and security policy, and other cases provided for in the Treaties, Commission has to ensure the Union's external representation.

Union legislative acts may only be adopted on the basis of a Commission proposal, except where the Treaties provide otherwise.  Other acts are adopted on the basis of a Commission proposal where the Treaties so provide.

The Commission's term of office is 5 years and members are chosen on the ground of their general competence and European commitment from persons whose independence is beyond doubt.  In carrying out its responsibilities, the Commission must be completely independent.  The members of the Commission must neither seek nor take instructions from any Government or other institution, body, office or entity. They must refrain from any action incompatible with their duties or the performance of their tasks.

Up to 31st October 2014 the Commission consists of one national per member state including its President and the High Representative of the Union for Foreign Affairs and Security Policy who shall be one of its Vice-Presidents.

From 1st November 2014, the Commission will consist of a number of members including its President and the High Representative of the Union for Foreign Affairs and Security Policy, corresponding to two thirds of the number of Member States, unless the European Council, acting unanimously, decides to alter this number.  This raises the prospect that countries such as the United Kingdom may not have their own Commissioner other than when a “rotating system” permits.  For further on this see TFEU Article 244.  This will undoubtedly be viewed by British Eurosceptics as a retrograde step bearing in mind that originally the UK was entitled to appoint 2 Commissioners.

The President of the Commission is appointed by the European Parliament though it is the European Council which makes a nomination.

Under TEU Art 16(8) - The Commission, as a body, is responsible to the European Parliament.

In accordance with Article 234 of the TFEU, the European Parliament may vote on a motion of censure of the Commission. If such a motion is carried, the members of the Commission must resign as a body and the High Representative of the Union for Foreign Affairs and Security Policy must resign from the duties that he carries out in the Commission.

A considerable amount of documentation is made available for public scrutiny or for consultation purposes - see here. 

The Court of Justice of the European Union

Court of Justice

See TEU Arts 19

See TFEU Arts 251 - 281

Also see Protocol 3 (Statute of the Court)

See Court of Justice - Press release

Under TEU Art 19, The Court of Justice of the European Union includes the Court of Justice, the General Court and specialised courts.  The student of EU law should make a detailed study of TEU Art 19 and TFEU Arts 251-281 as well as Protocol 3.  What follows is an outline only.

The Court of Justice

The court of justice shall ensure that in the interpretation and application of the Treaties the law is observed.

Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.

The Court of Justice comprises one Judge per member state and is assisted by 8 Advocates-General.  [There is provision in the TFEU to increase the number of Advocates-General].

The Judges and the Advocates-General of the Court of Justice are chosen from persons whose independence is beyond doubt and who satisfy the conditions set out in Articles 253 and 254 of the Treaty on the Functioning of the European Union.

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 Court of Justice is based in Luxembourg.  It exists to ensure that EU legislation is interpreted and applied in the same way in all EU countries.  It ensures, for example, that national courts do not give different rulings on the same issue.

The Court also makes sure that EU member states and institutions do what the law requires. The Court has the power to settle legal disputes between EU member states, EU institutions, businesses and individuals.

The Court of Justice sits in “Chambers” or in a “Grand Chamber” – (which applies is set out in the “Statute of the Court of Justice of the European Union”).

The Advocates-General - It is the duty of the Advocate-General, acting with complete impartiality and independence, to make, in open court, reasoned submissions on cases which, in accordance with the Statute of the Court of Justice of the European Union, require his involvement.

The Judges elect the President of the Court of Justice from among their number for a term of three years. He may be re-elected.

The General Court

The General Court shall include at least one judge per Member State.

The TFEU contains provisions relating to the make up of the “General Court.”  These are not covered further here.  The General Court has jurisdiction to hear and determine at first instance certain actions or proceedings referred to in Articles 263, 265, 268, 270 and 272, with the exception of those assigned to a specialised court set up under Article 257 and those reserved in the Statute for the Court of Justice.

The General Court has jurisdiction to hear and determine actions or proceedings brought against decisions of the specialised courts.

The General Court has jurisdiction to hear and determine questions referred for a preliminary ruling under Article 267, in specific areas laid down by the Statute.

Specialised Courts

The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may establish specialised courts attached to the General Court to hear and determine at first instance certain classes of action or proceeding brought in specific areas.

The European Central Bank

See TFEU Arts 282-284

There is a European System of Central Banks (ESCB) and a European Central Bank (ECB).  A protocol sets out further details of the ESCB and the ECB – see protocol 4.  The ECB is the central bank for Europe's single currency, the euro. The ECB’s main task is to maintain the euro's purchasing power and thus price stability in the eurosystem.  The UK is not part of the “Eurosystem.”

See European Central Bank.  The ECB has its own legal personality and it alone may authorise the issue of the euro.  It is independent in the exercise of its powers and in the management of its finances. Union institutions, bodies, offices and agencies and the governments of the Member States must respect that independence.

Those Member States whose currency is not the euro, and their central banks, retain their powers in monetary matters.

The Court of Auditors

See TFEU Arts 285-287

The Court of Auditors conducts the Union's audit. It consists of one appropriately qualified national per member state.  Members are appointed for 6 years.

In the 1980s there was considerable debate about what “free movement of persons” actually entailed.  Some Member States thought that it should refer to EU citizens only even though that would have meant the retention of internal border controls.  Other States argued that it covered all persons (whether EU citizen or not) and that there was no need for internal border controls.  In 1985, France, Germany, Belgium, Luxembourg and the Netherlands decided to create, between themselves, a territory without internal borders and this became known as the Schengen Area. 

The first agreement between those 5 countries was signed in June 1985.  A further convention was signed in June 1990 and came into effect in 1995.  Internal border controls were abolished between the signatories.  This freedom of movement was accompanied by certain “compensatory measures” involving improved cooperation between the police, customs and the judiciary and taking necessary measures to combat terrorism and organised crime.  A Schengen Information System (SIS) was created to exchange data on the identities of persons and descriptions of objects which are stolen or lost.

The Schengen Area gradually extended to include every EU member State excluding the UK and Ireland.

In March 1999, the UK asked to participate in some aspects of Schengen – namely police and judicial cooperation in criminal matters, the fight against drugs and the Schengen Information System (SIS).  In 2000, Ireland made a similar request.  Such participation by the UK and Ireland was agreed subsequently.

The developments since the original Schengen agreement are collectively  referred to as the Schengen Acquis - ("acquis" referring essentially to the body of law which has emerged since Schengen 1985).   The various rules were integrated into the framework of the EU by the Treaty of Amsterdam (October 1997).   When the Treaty of Lisbon 2007 was negotiated there was a wish to preserve the Schengen acquis and to develop it further.  The matter is now governed by the Treaty on the Functioning of the EU – Protocol 19.  See also The Schengen Acquis and its integration into the EU - Europa website.