Eu Law: Can Member States Pick And Choose?

The European Union (EU) is made up of 27 member states, each with its own law and legal system. While member states play a crucial role in ensuring EU law is implemented correctly and promptly, they do not accept that the Court of Justice has the final say on foundational constitutional questions affecting democracy and human rights. The EU Council, Parliament, and Commission have automatic rights to seek judicial review, and the Court of Justice of the European Union is the supreme judicial body that interprets and develops EU law through precedent. Member states are expected to incorporate EU directives into their national legislation by the given deadline, and failure to do so can result in infringement procedures or punitive action by the Commission. While the EU cannot expel a member state, it can trigger a red card decision, suspending certain rights, including voting rights, if there is a serious and persistent breach of EU values.

EU law takes primacy over national law

All member states of the European Union (EU) recognise that EU law takes primacy over national law when agreed upon in the Treaties. However, member states do not accept that the Court of Justice has the final say on foundational constitutional questions affecting democracy and human rights. The European Commission, referred to as the "guardian of the treaties", is responsible for ensuring that all EU countries properly apply EU law. It provides online information, organises expert group meetings, and drafts implementation strategies and guidance documents.

Directives need to be incorporated into Member States' national legislation by a specified deadline. EU countries must send the Commission the text of the national implementing measures, which incorporate the directive's provisions into their legislation. The Commission checks if these measures are complete and meet the directive's objectives. If not, the Commission opens an infringement procedure for "non-communication" or incorrect transposition of directives. In some cases, the Commission may use a pre-infringement process called EU Pilot to resolve cases without initiating a formal infringement procedure.

The Commission may refer unresolved cases to the Court of Justice of the European Union, which is the supreme judicial body that interprets and develops EU law through precedent. The Court can review the legality of EU institutions' actions and decide on claims for breach of EU laws from member states and citizens. While the Court believes it has the final say in defining the EU's "competence", many member state courts and parliaments believe they have the ultimate authority.

In the United Kingdom, the basic principle is that Parliament, as the sovereign expression of democratic legitimacy, can decide to legislate against EU law if the people express a wish to withdraw from the EU. This was established in R (Factortame Ltd) v Secretary of State for Transport, where it was held that UK courts have a duty to "override any rule of national law found to be in conflict with any directly enforceable rule of Community law".

The European Commission's role as the 'guardian of the treaties'

The European Commission is responsible for ensuring that EU laws are correctly applied and implemented across all EU countries. This role is referred to as the 'guardian of the treaties'. The Commission supports the implementation of EU laws by providing online information, organising expert group meetings, and drafting implementation strategies and guidance documents.

The Commission proposes and implements laws that align with the objectives of the EU treaties. These treaties are binding agreements between EU countries, outlining shared objectives, institutional rules, decision-making processes, and the relationship between the EU and its members. The Commission's role is to ensure that all EU countries properly apply EU law, and it is authorised to take steps if an EU country fails to incorporate a directive into its national law by the set deadline or does not correctly apply EU law.

The Commission has the power to initiate a formal infringement procedure, including financial sanctions, if a Member State fails to comply with EU law. This procedure aims to address systemic issues that affect many people and businesses, ensuring that EU laws are enforced in the general interest. The Commission may also use a pre-infringement process called EU Pilot to resolve cases without formal proceedings, particularly for technical or less sensitive issues.

The Commission's monitoring role includes investigative powers to secure information and carry out checks to ensure compliance with the treaties. It can prevent infringements through informal meetings, opinions, recommendations, and binding acts. Additionally, the Commission is responsible for authorising temporary suspensions of treaty applications by Member States through safeguard clauses, as outlined in the basic Treaties.

The Commission plays a crucial role in safeguarding the proper application and implementation of EU laws, ensuring that Member States comply with the shared objectives and values of the European Union.

The European Council's role in interpreting and developing EU law

The European Council is one of the EU's seven official institutions. It is composed of the heads of state or government of all EU countries, the European Council President, and the European Commission President. The Council's role is to decide on the EU's overall direction and political priorities, without passing laws. It deals with complex or sensitive issues that cannot be resolved at lower levels of intergovernmental cooperation and sets the EU's common foreign and security policy. The Council also nominates and appoints candidates to certain high-profile EU-level roles, such as the European Central Bank and the Commission.

The European Council plays a crucial role in interpreting and developing EU law by setting the broad direction and political priorities for the EU. It does not pass laws directly but influences their development through its decisions and policy-making. The Council's role in interpreting EU law is also evident in its power to nominate and appoint candidates to important EU-level roles, such as the European Central Bank and the Commission. These appointments can shape the interpretation and implementation of EU law.

The Council of the European Union, or simply the Council, is another essential body in the EU's law-making process. It is composed of government ministers from each EU country, who meet to discuss, amend, and adopt laws, as well as coordinate policies. The Council, along with the European Parliament, is the main decision-making body of the EU. It negotiates and adopts EU laws based on proposals from the European Commission. The Council's role in interpreting and developing EU law is more direct than that of the European Council, as it discusses, amends, and adopts legislation.

The European Commission, the EU's politically independent executive arm, also plays a significant role in interpreting and developing EU law. It is responsible for proposing new European legislation and enforcing existing laws. The Commission's staff, organised into Directorates-General, work on specific policy areas and provide expertise. The Commission ensures that all EU countries properly apply EU law and can initiate infringement procedures if a Member State fails to comply.

In summary, the European Council's role in interpreting and developing EU law is to provide high-level direction and set political priorities. It does not pass laws directly but influences their development. The Council of the European Union and the European Commission are more directly involved in the law-making process, with the Commission also responsible for ensuring the proper application of EU law by Member States.

The process of expelling or suspending a member state

The process begins with a 'yellow card' warning, which can be triggered by a proposal from one-third of the Member States, the European Parliament, or the European Commission. The Council, with the consent of the European Parliament, then decides by a majority of four-fifths of its members that there is a clear risk of a serious breach by the Member State in question. The Council must hear the Member State and can make recommendations to it before issuing a yellow card.

If the situation persists, the process can move to a 'red card' stage, where the Council, acting by a qualified majority, may decide to suspend certain rights of the Member State, including voting rights. This is a higher threshold for adopting EU laws, requiring 72% of participating Member States in favour. The European Parliament could also veto the decision if triggered by the Commission or a group of Member States.

While a member state can be suspended under Article 7, there is no provision in the treaties to expel a member state outright. However, a suspended member state could voluntarily trigger the process of leaving the EU under Article 50, as the UK did.

The pre-infringement process, EU Pilot

The EU Pilot process is used when it is likely to lead to swifter compliance than a formal infringement procedure. It allows the Commission to resolve many cases without the need to move to a formal infringement procedure. It is particularly useful when the issues at stake are of a technical nature, or when the Commission requires additional factual or legal information to carry out its assessment. The EU Pilot process is not used when the breach of EU law is well-evidenced, obvious, or self-acknowledged, nor is it used for more sensitive issues where discussions at a technical level are less likely to lead to a successful outcome.

In 2016, the Commission decided to limit the use of the EU Pilot system. It issued a new Communication, "EU law: Better results through better application" (COM (2016) 8600), stating that an EU Pilot case may only be opened when an alleged violation of EU law is of a technical nature. When the violation relates to political issues or issues where the Member State's position is clear to the Commission, the case must be handled directly in compliance with Articles 258 and 260 of the TFEU.

Despite this decision, many Member States have called for a reintroduction of the EU Pilot system. In 2017, Italy and 20 other Member States joined a non-paper calling for the European Commission to revise its enforcement policy and reintroduce a larger use of the EU Pilot system. This request was renewed by the majority of Member States' delegations during meetings in 2018 and 2019, and the European Commission undertook to reassess its enforcement policy and consider the possible conditions for re-introducing the EU Pilot system.

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