European Union Sovereignty

Sovereignty of Member States after joining European Union structures – does it still exist?

The impact of European law on the ‘sovereignty’ of Member States is one of the most controversial aspects of its working. Sovereignty is generally taken to be the capacity of a state for independent action both within and outside its own territory. That definition may be broken down into three elements. First, and most importantly in the context of international law, comes external sovereignty or the capacity of a state freely to determine its relations with other states or international organisations. A state possessing such capacity is clearly independent of other states. So, in this context, independence is a near synonym for external sovereignty

The counter part of (and necessary condition for) external sovereignty is interal sovereignty which is a state’s exclusive right and jurisdiction to establish its own internal institutions, to make the necessary arrangements for their working, to legislate for all purposes and to secure observance of such legislation. Finally territorial sovereignty is the exclusive authority which a state may exercise over anything or anybody within, above or beneath its territory. This includes the jealousy guarded right to regulate access to the air space above the territory or, for example, to seize foreign submarines which encroach within the territorial waters of a maritime country.

Clearly, sovereignty as so defined cannot be absolute. All states must respect the sovereignty of others and accept limitations to their sovereignty stemming either from their interaction with other states or, for example, from treaties which they have entered into.

The concept of sovereignty is one of the most complex in political science, with many definitions, some totally contradictory. Usually, sovereignty is defined in one of two ways. The first definition applies to supreme public power, which has the right and, in theory, the capacity to impose its authority in the last instance. The second definition refers to the holder of legitimate power, who is recognized to have authority. When national sovereignty is discussed, the first definition applies, and it refers in particular to independence, such as the freedom of a collective entity to act. When popular sovereignty is discussed, the second definition applies, and sovereignty is associated with power and legitimacy.

Sovereignty is defined as “the ultimate overseer or supreme authority in a state.  In a state sovereignty is vested in the institution, person, or body to impose law on everyone else and to alter any pre-existing law.”

The impact of European law on the ‘sovereignty’ of the Member States is one of the most controversial aspects of its working. Since, however, sovereignty is a central concept in international law it is appropriate briefly to define it.

Sovereignty is generally taken to be the capacity of a state for independent action both within and outside its own territory. This definition can be then broken down into three principle elements.

The United Kingdom joined the European Community (now called the European Union) on the 1 January 1973. The European Community had been in existence since 1957 when six Member States (France, Germany, Italy, Belgium, Netherlands and Luxembourg) signed the Treaty of Rome. In 1972, the UK also signed the Treaty of Rome in a ceremony in Brussels. European law was incorporated into UK law (here no distinction need be drawn between the different jurisdictions within the UK) by the European Communities Act 1972. Perhaps the most important provisions are set out in sections 2 and 3.

Section 2(1) of the European Communities Act 1972 states that:

All such rights, powers, liabilities, obligations and restrictions from time to time created or arising under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression ‘enforceable Community right’ and similar expressions shall be read as referring to one to which this subsection applies.

Section 2(2) provides a general power for further implementation of Community obligations by means of secondary legislation.

Section 2(4) of the European Communities Act 1972 states that:

The provision that may be made under subsection (2) above includes, subject to schedule 2 to this Act, any such provision (of any such extent) as might be made by Act of Parliament, and any enactment passed or to be passed, other than one contained in this part of this Act, shall be construed and have effect subject to the foregoing provisions of this section.

Section 3(1) of the European Communities Act 1972 states that:

For the purposes of all legal proceedings any question as to the meaning or effect of any of the Treaties, or as to the validity, meaning or effect of any Community instrument, shall be treated as a question of law (and, if not referred to the European Court, be for determination as such in accordance with the principles laid down by and any relevant decision of the European Court or any court attached thereto).

The effect of section 2 is that European law must be considered to be a valid and binding source of UK law. Where European law exists on a particular subject (at least if set out in the Treaties or in Regulations), it can override any inconsistent UK law – including Acts of Parliament. In this way the doctrine of parliamentary sovereignty is compromised. This is best illustrated by the case of the Spanish fishing vessels – the Factortame cases – Factortame v. Sec. of State for Transport (No.1) [1989] 2 W.L.R. 997 (HL); 1990 The Times 20 June (E.C.J.); (No.2) [1990] 3 W.L.R. 818 (H.L.); [1991] 3 All E.R. 769.

After the recognition in this case that UK law had breached European law and that the latter must prevail, English law was formally changed by staute. Some changes in the fishing regulations had already been made by the merchant Shipping Act (Amendment) Order 1989 SI No.2006. Others followed in the Merchant Shipping (Registration ) Act 1993. Later still, it was accepted that damages (amounting to many millions of pounds) would have to be paid top the Spanish trawler owners: R v Secretary State for Transport, ex p. Factortame (no 5) (1998) The Times 28 April.

This challenge to the sovereignty of the UK Parliament was at first limited by the modest scope of the European Communities, which were seen in the UK as little more than sophisticated free trade areas. However, increasingly after 1986, the Communities have transformed themselves into a Union which has some of the attributes of a Federal States and is certainly more than an international agreement. This change was especially signalled by the Treaty on European Union in 1992, often referred to as the Maastricht Treaty, and signed by 15 Member States (Belgium, Netherlands, Luxembourg (the Benelux countries); Germany, France, Italy, Greece, Spain, Portugal, Ireland, Denmark, Austria, Sweden, Finland, and the UK). The European Union now covers many aspects of our lives such as agriculture, transport, workers’ rights, (see Eurotext: Employment Policy pages) and competition. It grants a form of citizenship to the people of Europe, and there are ambitious plans for a common currency which will in turn require harmonized economies.