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A French Surrender with a note of finality

One of the grey areas in European Union law is the primacy of community law in relationship to the constitutions of the Member States. As the treaties have encroached more and more upon the national sovereignty of Member States, this has become a fraught issue. It has resulted in a staunch defence of sovereignty or a surrender of the national prerogative. The country having the strongest debate upon this issue is France.

In a recent case at the Conseil D’Etat, Arcelor had requested a ruling on whether EU law violated the principle of equality in the French Constituion as steel companies had to comply with climate change laws whereas the competing industrial sector of plastics was exempt. The Conseil D’Etat declined to make a ruling and referred the case to th European Court of Justice. This has caused a debate in France as to whether the French constitution is now subordinate to the European Court of Justice.

The French court’s decision not to conduct a constitutional test on EU legislation is seen as significant as it arguably places France’s constitution below the ECJ in the legal hierarchy.

Although the supremacy of EU law over national law has been well-established, the status of national constitutions has been less clear not only in France but also elsewhere, including Germany.

Leading newspaper Le Monde was quick to predict on the day of the ruling that sovereignists and eurosceptics would probably interpret the judgement as a “Waterloo” of French sovereignty – something which became a self-fulfilling prophecy as sovereignists were eager to stress that even Le Monde called the ruling a “Waterloo.”

There is some debate as to whether this was the groundbreaking referral that some commentators have stated. As the ruling concerned EU law, it has been argued that the Conseil D’Etat was only deferring to the European Court of Justice on this matter as equality was a governing principle with European law. Therefore the European Union and the French Constitution are complementary.

Despite the radical arguments of some who view the entry into the EEC as a watershed that fundamentally abrogated British sovereignty, the right of Parliament to bind the powers of its successor is not a recognised convention yet. Given the political will and a majority in Parliament, the United Kingdom could democratically withdraw from the European Union and assert the primacy of British law. The illiberal EU may not recognise self-determination except as an entry principle, but the constitutional recognition of European law is a parliamentary derogation, nothing more.

10 comments to A French Surrender with a note of finality

  • cubanbob

    Isn’t the EU supposed to bow down to France and not the other way around? It would ironic if this irritated the French enough to start unraveling the EU.

  • guy herbert

    It is a well-established (and quite logical) principle of French law that treaties are superior to domestic law, which is strikingly different from the UK. But that doesn’t mean they are eternally binding: France retains the power to abrogate treaties, too.

  • “…the right of Parliament to bind the powers of its successor is not a recognised convention yet”.

    A moot point, in fact. The judgment of Lord Justice Laws in the so-called Metric Martyr case while, in my view, legal nonsense, certainly recognises the power of parliament to bind its successors where putative ‘constitutional statutes’ are concerned.

  • pete

    One of the reasons that many people distrust institutions like the EU is because confusion like this can arise. It is almost as if the situation was deliberately engineered from the start to produce the maximum amount of work for the maximum number of politicians and lawyers all at the taxpayers expense.

    Cock up is more like than this conspiracy, but that doesn’t help those who pay for the whole sorry state of affairs, and now those who benefit know how lucrative the satus quo is we are unlikely to see any change.

  • Paul Marks

    The so called “constitutional statutes” do not include things like the Bill of Rights (indeed most British people no longer even know that there has been a Bill of Rights since 1689), otherwise such things as the various “gun control” regulations would be void (oh yes the British Bill of Rights upholds this right – this is where the idea for the Second Amendment to the United States Constitution came from).

    Basically the court wanted to stay that the E.U. had supreme power – so it used the notion of a constitutional statute, even though (it seems) only statutes giving the E.U. power are constitutional statutes.

    The universities are already teaching law students that countries do not have the right to leave the E.U. (which is rather odd, as Greenland has already left).

    Of course French statesmen such as Charles De Gaulle would never have allowed French independence to be sacrificed to the E.U.

    But France no longer seems to have such statesmen. These days all the politicians of France care about is that subsidies get to key interest groups (not even to France as a whole – as the French taxpayers in fact pay in to the E.U. more than France gets out). Such things as the French nation and her independence are not valued by the politicians.

    The whole thing started as almost an accident – after all the French Prime Minister in 1957 (not De Gaulle, but he went along with what had been decided when he came to power) only agreed to the E.E.C. (as it was then) on the rebound from the British pull out from the Suez operation, “make Europe your revenge” he was told. Also it has come in stages – till 1986 there was a absolute national veto power on all E.E.C. policies.

    However, the “dream” of the “a country called Europe” fanatics has come to pass. The E.U. has become a government – a government that determines most of the regulations and whose court can be relied upon to further its interests (against those of the nations that are under its thumb).

    Of course a nation could regain its freedom – but only if had leaders who had the will to do this. And what nation (in the E.U.) has such leaders?

    And, with the schools, universities and most of the media pro E.U. – where are the chances that such leaders will come to power?

    Just today the “Election Commission” may have managed to bankrupt the U.K.I.P.

    When the powers-that-be (such as the security services) failed to infiltrate this anti E.U. party with “racists”, they sought another way to destroy it – and it looks like they may have found one.

  • nick gray

    Re- BILL OF RIGHTS. I recently read an Australian blog, where a man tried to overthrow an Australian Commonwealth Government law by referring back to the Bill Of Rights, but he was told by our Australian judge that the Bill of Rights was a nice wish list, but Parliament always had supremacy. If Canberra passed a law that chipped away at the Bill of Rights, well, no British Government was actually constrained by it (it’s NOT a constitution), so no Australian Government was, either. It seems that Bills of Rights and Declarations of Independence are like covers on books- not something by which they can be judged.

  • nicholas gray

    What a shame that Britain didn’t follow Switzerland’s example! I read in the American CATO blog about how the eurocrats are complaining about unfair tax competition from Switzerland. Other contributors pointed out how Switzerland also had ‘unfair’ trains that ran on time, ‘unfair’ airports without queues, and ‘unfair’ competition between the Cantons to attract businesses! The swiss are doing nothing about this ‘looting’ of taxable businesses from Europe, nor about draining the productive people out of their high-tax states to enrich the Swiss. The swiss never signed into Europe, and now they’re paying the penalty. Let this be a lesson to all!!

  • Julie in Chicago

    “This has caused a debate in France as to whether the French constitution is now subordinate to the European Court of Justice. …

    “… The illiberal EU may not recognise self-determination except as an entry principle, but the constitutional recognition of European law is a parliamentary derogation, nothing more.”

    I seem to remember something about an issue similar to this one in the US in the 1860’s. Didn’t turn out too well for those who wanted to leave their Union, as I recall.

    (Personally, I always thought the proper “punishment” was to forcibly EXPEL the slave states from the Union.)

  • Paul Marks

    Julie raises an interesting point.

    Although their clearly was no legal right for the Federal government to use armed violence to prevent a State leaving the Union (which is why President A.L. never put the matter to the Supreme Court during the war), the issue of SLAVERY trumped such legal points.

    True there were slaves in some States that did not leave the Union – but their were no States without slaves that left the Union.

    So whether Lincoln really cared about slavery or not (he did not make a speech about it before 1854) it was a vital propaganda point – it turned the conquest of the South into a (genuine) moral crusade.

    Of course if the Southern States had been allowed to leave the Union slavery could still have been undermined. All the United States would have had to say is “you are now a different country or countries, we are under no obligation to either prevent slaves entering the United States or to sent them back”. Then watch as the Southern States tried to impose border control on a frontier that went through forests, mountains and planes, had major rivers running across it (rather than along it) and so on.

    Slavery would have collapsed within a few years. Although (of course) that does not mean that the Southern States would have returned to the Union.

    However, the institution of slavery no longer exists.

    Only a few years ago the Supreme Court pointed out that the 1845 treaty by which Texas joined the Union clearly states that it may also leave the Union.

    Also (today) the balance of population between North and South is very different.

    Of course there is no great desire in any State to leave the Union – but if (at some future time) there was, it is hard to see the Federal government killing hundreds of thousands of people (more people died in the Civil War than in all other wars the United States has been in put together – and the population in 1861 was only a small fraction of what it is now) to keep States in the Union.

    As for the E.U. – there has already been a test.

    Little (in population) Greenland left the E.E.C. (as it was then) – and what did “Europe” do about it?

    It did nothing at all.

    “Ah but the Union has a different legal personality than the E.E.C. did”.

    But is it going to shed blood? What would be its propaganda moral crusade?

    “We wish to stop people in this country getting lower taxes and less regualtions”, does not have the same ring to it as “we are going end slavery”.

  • Paul Marks

    Sprry for “their” for “there” – and my other errors.