On Thursday 23rd June 2016, the United Kingdom and Gibraltar go to the polls to vote on whether or not to secede from the European Union. For all the hype, it has emerged that many people do not know what the EU does. More relevantly for an international law blog: what exactly is the EU in legal terms? The answer has been explained in textbooks that cause backaches for law students across Europe. This article attempts to give you the basics in a nutshell.
Warning: this is a highly simplified explanation that should not replace your exam notes!
You need to know five things:
- The Member States of the EU transferred selected powers to the EU institutions.
- The EU institutions, broadly speaking, exhibit legislative, executive and judicial functions.
- EU law has direct effect on the citizens of Member States.
- The European Court of Justice (ECJ) has the final say on matters of EU law.
- Consequently, the EU is the world’s best example of a supranational entity.
Still confused? Let’s explain using a classic EU law case: Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein. If you can pronounce the name, you are halfway there. For the rest, content yourselves with the shortened name of ‘Cassis de Dijon’ or simply ‘Cassis.’ It’s a dispute between France and Germany in the ECJ. What would have put these two major European nations at loggerheads in court? Alcohol. More specifically, liqueur.
Picture this: in 1979, a German firm imports a French liqueur into Germany and sells it as it is. The blackcurrant liqueur has an alcohol content of 20%. In Germany, a law says that fruit liqueurs must have an alcohol content of at least 25% (don’t ask why). So essentially, the French liqueur is not strong enough to be a German liqueur. The German government then tells the importer that the liqueur label is not valid in Germany and asks that it be changed. Without the EU, this story would end here. Unfortunately for Germany, it does not.
The EU is empowered by a number of treaties that build on one another, and which today are consolidated into two main treaties: the Treaty of the European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU). The TEU is roughly concerned with institutional issues and the TFEU is roughly concerned with the substantive law. In article 3(a) of the TFEU, the EU has exclusive competence in the area of the customs union. EU policy is generally to remove internal customs barriers and set up an external barrier, effectively treating the Union as a single country for customs purposes. The TFEU goes further in article 34 to specify that “[quantitative] restrictions on imports and all measures having equivalent effect shall be prohibited…”
What did I say at the start? EU law has direct effect. This differs from the usual understanding of international law in that treaties cannot generally be raised by non-State actors in court, unless that law is also incorporated into domestic law (dualism vs monism for the nerds). The EU is different. It is supranational, not international. The distinguishing feature of the EU treaties is that States have transferred, not delegated, their competencies/powers to the Union. The interpretation of the ECJ is that EU law can be used by citizens against the State, or vice versa. They can do this in their domestic courts; all EU national courts are competent in EU law. Furthermore, the ECJ is the final appellate court in the EU and takes appeals from national courts on questions of EU law.
Have you guessed what happened now? It was a matter of connecting the dots. The importer argued that the requirement to change its labelling, its brand and its marketing amounted to a measure that had the equivalent effect of being a restriction on imports. They argued that they would have to change all liqueur branding just for Germany. The court agreed and struck down the domestic law.
This is but one case involving EU interference with domestic law. However, the EU has also resulted in many legal benefits for its Member States. It has the effect of unifying law, just as the High Court does in Australia or the Privy Council once did for the whole Commonwealth. There are pros and cons which generate never-ending debate. For example, in Australia the issue of federalism is still very much alive.
So it’s up to the UK, and Gibraltar, to decide whether or not to continue accepting EU law on 23rd June. Thanks to a quirk of history, Commonwealth citizens resident in the UK can vote too, so that includes Aussies!
Wygene Chong is a second year Juris Doctor student and Ordinary Committee Member of the UWA International Law Club, who celebrates the end of exams by writing international law articles.