Monday, 4 May 2009

Blind to Justice?


Remember the Maastricht Treaty? Buried in the small print is this little beauty:

If action by the Community should prove necessary to obtain, in the course of the operation of the common market, one of the objectives of the Community and this Treaty has not provided the necessary powers, the council shall take the appropriate measures.(my bold)


Or put another way, "We, the unelected and undemocratic European Council think we've covered all the bases in this power grab, but if we've somehow missed anything, we've got power over that too."

I couldn't imagine Westminster, the mother of all Parliaments standing for that but there was not a cheep out of the MEPs at the time. Nobody blew the whistle. Did Major actually read the thing before he signed it?

I did a bit of digging and came up with this at www.parliament.uk
Select Committee on European Scrutiny Twenty-Ninth Report
15 All or most constitutional courts in the EU - expressly or implicitly - contest the exclusive competence of the ECJ to define the scope of Article 308. The German Constitutional Court in particular has emphasised in its Maastricht judgment that it retains a jurisdiction of last report over all questions involving the outer limits of EU competence, a position echoed by the highest courts of several other Member States. The basis for this purported "national" prerogative on competence issues is the argument that all transfers of national sovereignty to the EC, and later EU, by national parliaments were impliedly subject to the requirements laid down by the national constitutions in these States, as no law may be made and no treaties entered into by the national parliament that are unconstitutional. On this view, if the ECJ were ever to interpret any part of the EC Treaty so expansively as to assert a Community power which exceeds those authorised under national constitutional law, the national constitutional court would have to challenge the ECJ's decision.

The disagreement over which court is competent to define the limits of the Community's powers has its origin in the fact that each type of court approaches the question of Kompetenz-Kompetenz (i.e. which court has the competence to decide competence) from the perspective of the highest norm within its own legal system: the ECJ decides on the basis of the EC Treaty, and national courts in accordance with their constitutions. At a theoretical level, the problem of Kompetenz-Kompetenz is insoluble as there is no further supreme norm which is common to and accepted as supreme by both systems. At a practical level, both the ECJ and national constitutional courts, while stating their respective positions, have carefully avoided open conflict. For this reason it is unlikely that national constitutional courts would challenge the ECJ's right to interpret the scope of Article 308.


The key thing is "Who's the daddy?". Do national courts have superiority over the European Courts. The Germans seem to think they do -
The German Constitutional Court in particular has emphasised in its Maastricht judgment that it retains a jurisdiction of last report over all questions involving the outer limits of EU competence
but Westminster thinks otherwise -
it is unlikely that national constitutional courts would challenge the ECJ's right to interpret the scope of Article 308


Article 308 is still in effect as subsequent Treaties have only added to the EU's powers. Article 308 is effectively a catch-all clause allowing the European Council to enact legislation which binds all national governments with no need for debate or discussion.

In my opinion, Article 308 must be repealed and the ECJ forced to operate in a subservient position to the courts of sovereign nations.

Where were your MEPs when this was being written? What is the point of sending MEPs to Europe if they are not going to fight for British interests?

What are you going to do about it? I know what I'm going to do, but I need to get elected first.

2 comments:

  1. I have forgotten what British interests are , and what needs fighting for. Could you remind me please. Does anyone know what their MEPs achieve in Europe?

    ReplyDelete
  2. Well for starters you could look at water quality. The EU decided to set minimum standards for water quality across all member states. All very sensible. Except Britain had some of the highest standards while areas in Southern Europe had the worst. The end result was a fudge, with standards being set somewhere near the middle. What this meant was the water companies in Britain no longer had to spend so much on water treatment. Of course, they promptly cut back on such spending. You may have noticed over the last few years a rise in complaints about drinking water - tasting funny, smelling odd. There's even been a rise in the incidences of areas having to boil water before drinking. What has been an improvement in Southern Europe has been a decline in Britain.

    Where were the MEPs arguing that Britain should keep it's higher standards? Where were the calls for a (perfectly justified) opt out?

    That's the problem with blanket EU legislation that is always dragged down by the lowest common denominator - a problem that's going to be exacerbated after the latest expansion taking in under-developed Eastern countries.

    ReplyDelete

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