You also saw that an aim of the EU is to promote its values. These values are set out in Article 3 and 4 of the TEU:
- respect for human dignity
- the rule of law
- respect for human rights including the rights of minorities.
Admirable and important though these aims and values are, they are perhaps different from what you might have expected. More idealistic and less economic, perhaps? Nevertheless, they have significance. At the time of writing, for example, the European Commission is investigating political events in Poland surrounding the newly elected Law and Justice party. The legal basis for this investigation is the rule of law framework contained in Article 2 TEU. The announcement of this investigation is discussed in the video in this article.
The Treaty of Lisbon which came into force at the end of 2009, introduced elements of a written constitution for the EU. The plan for an EU constitution, contained in the Treaty of Nice, was dropped in the face of opposition from some member states. These included the UK and, after referenda, others. The fear was that the Treaty of Nice was a step too far down the road to making the EU a federal state in its own right and that it diminished member states’ sovereignty further. This still has resonances today. The mechanism for placating those concerns came from Angela Merkel, the Chancellor of Germany. She simply suggested revising the Treaty by dropping the word ‘constitution’ from it. Nevertheless, some of the original constitutional language remains; the words themselves reflect the fact that the EU has progressed beyond a mere trading bloc and intends to evolve politically still further.
However, for now, the EU still predominantly deals with trading, economic and related social matters. As noted below, Article 3 TEU sets out further aims than just a single market. These further aims including working towards a more sustainable development of Europe based on economic growth, full employment, social progress and elimination of discrimination.
You may wish to reflect on how the immigration crisis and, for some EU member states, an economic crisis is testing these goals.
Article 1 TEU contains the provision referring to ‘an ever closer union’. It actually reads ‘an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen’. Concerns abound relating to the manner in which the commitment embodied in this phrase could impact on member states’ sovereignty and on Decisions of the CJEU.
As for the court, the CJEU has referred to this concept in the past merely as an interpretative tool, notwithstanding that the phrase merely sets out an objective and does not impose legal rights and obligations. Essentially, the CJEU has resorted to the concept as an aid to construction of the last resort, not as a constitutionally defining notion of ever diminishing political sovereignty for member states.
An example of the CJEU’s resort to the principle is Pupino, Criminal Proceedings against (Case C-105/03)  ECR I 5285. This case established that member states must interpret domestic law in conformity with the wording and purpose of framework decisions.
Note that in Assange v Swedish Prosecution Authority  UKSC 22,  2 AC 471 the UK Supreme Court considered itself not bound by the principle set down in the Pupino decision of the CJEU. In R (HS2 Action Alliance Ltd) v Secretary of State for Transport  UKSC 3, the Supreme Court suggested that the primacy of EU law within the UK system may be more qualified than has so far been appreciated. In particular, it suggests that the ‘constitutional’ status of the rule of law means that EU law must be applied consistently with it. Accordingly, CJEU has no jurisdiction to decide issues of state function and national identity. This raises an interesting constitutional point regarding the supremacy of EU law. The principle of supremacy will be considered in Section 10.
The limited role played by this concept in the CJEU’s decision-making is also apparent from the fact that the concept has been referred to very infrequently in the Court’s case law. It decided almost 30,000 cases (including opinions) between November 1954 and November 2015 and the term ‘ever closer union’ was referred to in fewer than 60 cases. Many of those cases relate to issues of institutional transparency of access to official documents (House of Commons Briefing Paper Number 07230, 16 November 2015.)
You may have noted the different slant put on the concept of ever closer union by Article 3 TEU. It is couched in terms of closer economic union:
The Union shall establish an internal market. It will work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment. … It shall promote economic, social and territorial cohesion, and solidarity among member states.
Politicians in some member states cite Article 4 TEU as evidence of preserving the so-called red lines, that is, retained sovereignty. The view of those politicians is that fundamental and exclusive law-making powers in critical areas must remain with the national legislations and not be transferred to the EU.
In accordance with Article 5 TEU, competences not conferred upon the EU in the Treaties remain with the member states: ‘The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality’.
Article 4 (2) states that:
The Union shall respect [member states’] … national identities, inherent in their fundamental structures … including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State.
However, there is a limitation in Article 4 (3). It emphasises that member states ‘shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives’, and that member states ‘shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union’. This clearly flags up how crucial it is that EU law is applied consistently, uniformly and fully in all member states, which echoes the approach of the CJEU in its early years.
In addition, Article 6 recognises the rights, freedoms and principles set out in the CFR. Yet again, significantly, it is stated that ‘fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms … shall constitute general principles of the Union’s law’. However, member states can derogate. For example, during the negotiations at Lisbon the UK and Poland obtained a legally binding protocol (Protocol 30) which clarified the applicable scope of the CFR; this states that:
- No court can rule that the laws, Regulations or administrative provisions, practices or action of the UK are inconsistent with the principles laid down in the CFR.
- The CFR creates no new rights enforceable in the UK, over and above those already existing in UK law.
- The CFR cannot be used by the CJEU to alter UK labour law or laws dealing with social rights.