The European Union (EU) exists as a result of two treaties between its member states. These are the Treaty on the European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU). Essentially these Treaties are the mechanism through which the member states transfer some of their sovereign power to the EU institutions allowing those institutions to act in the interests of all members. This might be co-ordinating a legal framework across the Union (such as aviation control) or it might be creating laws (such as the rules on worker rights). In much the same way that we elect and authorise MPs to act in our interests, the EU institutions exist and are authorised to act for the member states through the Treaties.
This transfer of sovereign power is crucial for enabling the Union to act at the collective level. By transferring power to legislate, for example, on the free movement of goods the Union can create and enforce rules that all members abide by in order to participate in the internal market (also referred to as the single market within the UK). Like any club, the member states are bound by the collectively agreed rules that allow the Union to function.
Crucial to the effectiveness of the EU is the legal principle of supremacy. This principle holds that when EU law conflicts with the law of a member state then, to the extent that they conflict, Union law will apply over domestic law. This is essential for maintaining the Union as a supranational body – that is a body that can enforce rules upon member states to further the collective goals of the Union. If member state law applied over Union law then the EU would not be able to ensure that members are bound by the common rules of the Union and it would become ineffective thus failing to achieve its objectives.
Of course this also means that member states are constrained in their actions by these rules. For example, the EU negotiates and makes new trade agreements on behalf of member states. Internally, member states cannot make laws that contradict or violate EU legal requirements without incurring some legal sanction.
This is the trade-off that is fundamental to Union membership – a member states gains access to and support from the Union but at the price of being constrained both internally (i.e. cannot make any domestic law they wish) and externally (i.e. cannot conclude trade agreements outside of the Union). Thus member states gain access the internal market and the markets of other member states as well as the collective power of co-ordinated action by a bloc of countries – hence the power of the EU in trade negotiations and in the World Trade Organisation – but can no longer act as they wish independently of the other member states and Union institutions.
However, member states and their citizens are not passive within the Union political structures rather they are active participants. The European Parliament is made up of directly representatives elected nationally while the Council of the European Union consists of government ministers. Both these bodies must approve legislation thus member states and their populations have a high degree of influence within the decision making process. Meanwhile, the Commission is appointed from a list of candidates proposed by the member states to manage the Union day-to-day.
In practice this means that Union law is negotiated and developed between the member states and the Union institutions.
The issues of supremacy and national sovereignty have been a major feature of Brexit. The choice facing the UK is about the balance between them. There are three broad options. First, we can remain with access to the internal market but this would require abiding by Union law in order to participate. Second, we could have some access to the internal market but in a much more limited way to avoid having to apply a large amount of Union law. Third, we could withdraw entirely from the internal market removing the need to comply with any Union law (although this would require a ‘hard’ border between Ireland and Northern Ireland).
Essentially, the more we participate in the internal market the more constraints the UK government would have to comply with yet this comes with the economic benefits of reduced trade obstacles. For example, the legal presumption is that goods within the EU can be sold in any member state if they are approved for sale in another member state. Some other benefits to removing obstacles are the lower cost of operating across national borders, the wider availability of goods, the increased competition between businesses and increased output from shorter supply chains. For individuals this opens up a job market across the continent through the free movement of workers.
Resolving this basic question of how much the UK is prepared to abide by commons rules that limit the actions of the government is needed in order to develop a new relationship EU post-withdrawal.
Dr. Samuel Walker, Lecturer in Law