Margarida Vasconcelos: Westminster Parliament must be able to strike down EU laws and European court of justice rulings, which are not in Britain’s national interest

Pursuant to Article 17 TEU and Article 245 TFEU the European commissioners are required to swear a solemn declaration, before the Court of Justice of the European Union, pledging to be completely independent in carrying out their responsibilities in the general interest of the Union as well as to respect the Treaties and the Charter of Fundamental Rights in the fulfilment of their duties. The European Commissioners are therefore required to be independent and to act on the Union general interests.

Hence, Lord Hill is required to uphold all the principles and values enshrined in the Treaties and the Charter of Fundamental rights. He is bound to represent the interests of the EU as a whole rather than the UK. Consequently, Lord Hill is prevented to uphold and protected the UK’s interest. Lord Hill is required to act and defend the Union general interest hence he will not be able to defend the City of London interests, particularly if they conflict with the EU’s general interest.

On 10 December the college of European commissioners, including, obviously, Lord Hill, travelled to Luxembourg for the swearing-in ceremony before the European Court of Justice. Jean-Claude Juncker, President of the European Commission, said "The oath we take today is a serious one - it is an oath of independence and of respect of our Charter of Fundamental Rights. This is a strong political commitment from the whole College to ensure that the Charter is respected and complied with in all EU policies for which the Commission is responsible. This is no trifle matter - we are nothing if not for our values."

Each member of the European Commission gave the ‘solemn declaration’ at a formal sitting of the Court of Justice of the European Union. All the members of Juncker’s Commission recited:

“Having been appointed as a Member of the European Commission by the European Council, following the vote of consent by the European Parliament

I solemnly undertake:

to respect the Treaties and the Charter of Fundamental Rights of the European Union in the fulfilment of all my duties;

to be completely independent in carrying out my responsibilities, in the general interest of the Union;

in the performance of my tasks, neither to seek nor to take instructions from any Government or from any other institution, body, office or entity;

to refrain from any action incompatible with my duties or the performance of my tasks.

I formally note the obligation laid down under the Treaty on the Functioning of the European Union, by virtue of which each Member State is to respect this principle and is not to seek to influence Members of the Commission in the performance of their tasks.

I further undertake to respect, both during and after my term of office, the obligations arising therefrom, and in particular the duty to behave with integrity and discretion as regards the acceptance, after I have ceased to hold office, of certain appointments or benefits.”

According to the Daily Telegraph the president of the Court of Justice, Vassilios Skouris, in his speech at the swearing-in ceremony, which main aim is to hold the Commission political independence, said to Mr Juncker “You are taking up office during the worst financial and economic crisis that Europe has suffered at a time when the European ideal is beset by criticism from Eurosceptic circles. Thus your key task is to prevent the fruits of European integration being trampled in the dust.” As Bill Cash noted, “These comments make clear the reasons why Eurosceptics are deeply concerned that the impartiality of this court is undermined and compromised by these sorts of political motivations,"

If there were ever any doubts about the mission of Juncker’s Commission there shouldn’t be now. The Commission, as well as Mr Juncker as its president, is drive by the motto “ever closer union”, and it will continue to propose more regulations, more integration and more Europe. Moreover, as pointed out by The Daily Telegraph, the president of the Court of Justice, stressed that Mr Juncker “key task” was to prevent the critics of the European Union from reducing the powers of institutions such as the Luxembourg court he oversees, or the commission in Brussels.”

As The Daily Telegraph rightly noted, “The European Court of Justice is the EU’s highest legal authority and has the power to override governments or strike down national laws that are judged to be in breach of European legislation.” In fact, as Lord Brennan has said “The historical position of the ECJ is clear in that it is the final arbiter of the validity of European law.”

The ECJ has been the motor behind European integration. It has followed a strong policy of integrating EU law into national legal orders. It is well known that the ECJ, in its need to ensure a uniform interpretation and application and effectiveness of Community Law, has extended its competences beyond the Treaties. Following its own principle that the Treaties cannot be strictly interpreted, it has enabled the Community to legislate in areas without a Treaty base. The Court gave to the European Community implied powers to harmonise criminal law matters, even before the entry into force of the Lisbon Treaty. The Pupino case is a clear example of a ECJ’s ruling expanding the reach and scope of European law with total disregard to national parliaments, which had not agreed to give such powers to the European Community. It ruled in favour of further EU integration over these matters, overruling national governments, as it took away from them, for the first time, the exclusive right to draft criminal laws. In fact, the Court jurisprudence, all these years, clearly show us that it most of the time rules in favour of the EU and further integration at expense of subsidiarity and, obviously, member states’ national parliaments.

The Lisbon Treaty has provided the ECJ with a strengthened constitutional character. The Court function has been particularly strengthened with the collapse of the pillar structure, which has enabled it to rule to rule on all matters in the Treaty with few exceptions. It is noteworthy that the ECJ has acquired new powers through the Treaties but the Treaties as well as secondary EU legislation were amended to incorporate ECJ rulings. This is a perfect recipe for further European integration.

The ECJ has been deeply interfering with the UK legal system, overriding national rules as regards a wide range of EU policies and legislation. Once a proposal is adopted, the UK is required, under the European Communities Act 1972, to transpose and implement the EU measure, in fact due to the primacy of European law over national law, it is not allowed to legislate against such measure. The Court has asserted its jurisdiction not only over British laws and law making, but also over the UK Constitution. The UK is required to fully comply with the ECJ’s judgements. Under the terms of Section 2(4) and 3(1) of the European Communities Act 1972 the UK’s courts are required to override national legislation deemed incompatible with EU law, as well as to set aside national legislation in order to comply with the ECJ's interpretations. Likewise, Parliament has always accepted the obligation to amend national law to comply with the European Court of Justice decisions. Hence, the will of Westminster has not been preserved.

The European Communities Act 1972 is, therefore, the root of the problem, consequently the only possible solution is to amend this act. The Westminster Parliament must be able to override all EU legislation, which is deemed not to be in Britain's national interest. Hence, the government should introduce primary legislation, as recommended by the European Scrutiny Committee, to disapply EU legislation notwithstanding the ECA 1972.

It is important to recall that Bill Cash’s Sovereignty Bill would allow Parliament to strike down EU laws and European court of justice rulings, which are not in Britain's national interest. It includes clauses on disapplication and a unilateral veto over EU legislative proposals. Bill Cash’s Sovereignty Bill addresses therefore fundamental constitutional issues such as the assertion of European Union institutions that they have ultimate jurisdiction over British law making. It would be a fundamental instrument to defend the right and freedom of British people to make their choice at the ballot box, regardless of qualified majority voting, of the undemocratic ordinary legislative procedure and irrespective of the European Court of Justice damaging rulings.

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