“Let’s take back control!” This slogan, which was used during the Brexit campaign, summarises the Eurosceptic wave that hit Europe in the last decade. According to Vasilopoulou, Euroscepticism had started being more prominent in the 1990s when there was an accelerated process of EU integration.[1] Although Szczerbiak and Taggart, in their seminal work, have drawn a line between ‘hard’ and ‘soft’ Euroscepticism,[2] the movement has as a common derivative the belief that States lose their national sovereignty once they accede the EU.  The belief that national sovereignty has been significantly undermined by the EU is supported by the recent discourse that Eurosceptic parties have adopted in their electoral campaigns. Their electoral success was an emphatic remark that their rhetoric was appealing to the people.

Nevertheless, the Eurosceptic discourse may not be as accurate as it was portrayed.  In contrast, the preservation of national sovereignty by being a Member of the EU may not be as paradoxical as many Eurosceptic politicians believe. The judgement of the Court of Justice of the European Union (henceforth “the CJEU”) in Wightman and others[3] (henceforth “the Brexit judgement”), in which it was held that the UK could unilaterally revoke the withdrawal agreement before this agreement entered into force, may be welcomed as the rebirth of national sovereignty. But has it ever been lost?

This article aims to examine whether the Eurosceptic discourse on national sovereignty is compatible with the constitutional order in the EU. In order to assess this, the article will be divided in three parts. Firstly, it will examine how the Brexit judgement has enhanced national sovereignty. Secondly, it will discuss how the Brexit judgement has been a constitutional turning point in aligning with the national constitutional courts regarding supremacy of EU law. Lastly, it will assess the institutional dimension of the EU and how national sovereignty plays a crucial part in the development of the EU.

Brexit judgement: Long live national sovereignty

The decision of the UK government to withdraw from the EU, following the result of the referendum on 23 June 2016, was welcomed by Eurosceptics as a clear manifestation that the UK was taking back its national sovereignty. However, the Brexit judgement has raised doubts as to whether national sovereignty had ever been lost. This judgement has a remarkable constitutional importance as it has highlighted that the Member States retained their national sovereignty from the time of accession until the time of their final withdrawal.

The retaining of national sovereignty was illustrated by the process that the withdrawing Member State was required to follow. By reading closely the provisions of Article 50 TEU, the CJEU explained that the withdrawal procedure was not a snap-shot. [4]  Instead, there are three stages that need to be followed in order for a Member State to withdraw from the EU.

Stage 1: Who pulls the trigger?

Based on Article 50 TEU, a Member State could withdraw from the EU “in accordance with its own constitutional requirements” and notify the European Council of its intention. This means that the UK held control of the process since only the UK could pull the trigger. The same approach was followed by the European Council, a few days after the referendum, by stating that, “[i]t is up to the British government to notify the European Council of the UK’s intention to withdraw from the Union. This should be done as quickly as possible. There can be no negotiations of any kind before this notification has taken place”.[5]

Stage 2: Withdrawal procedure

Once the Member State notifies its intention to withdraw from the EU, negotiations commenced for reaching an agreement on the terms and conditions for this withdrawal. According to Article 50(2) TEU, two agreements should be reached: (1) on the withdrawal and (2) on the future relationship between the withdrawing Member State and the EU.

Stage 3: Exit

As it is provided by Article 50(3) TEU, the State is withdrawing from the EU only when these two agreements enter into force or if they have not been reached, after two years following the State’s notification of its intention to withdraw. In the case of Brexit, a transition period was agreed upon it in relation to the UK in which the agreement regarding the future relationship between the UK and the EU would be finalised.

By reiterating Article 50 TEU, the CJEU illustrated the pivotal role of the UK in determining the process of withdrawal. Only the UK could initiate the procedure, and only the UK could terminate it. Although the UK would have to enter into negotiations in order to agree on the withdrawal and on the future relationship with the EU, the UK could, at any point revoke the initial intention of withdrawal.

The CJEU noted that since the provisions of Article 50 TEU did not cover the aspect of revocation of the initial notification of the intention to withdraw, then revocation could be done in the same way as the procedure was initiated. Since the procedure was initiated unilaterally in accordance with the constitutional requirements of the Member State, the concerned Member State could revoke the agreement unilaterally in accordance with its constitution.[6] By adopting as governing law, the one of the Member State’s constitution, rather than EU law, the CJEU, essentially, accepted that the national sovereignty of the Member State should be protected.

Further supporting the argument that the Brexit judgement enhanced national sovereignty, the CJEU has stressed that “given that a State cannot be forced to accede to the European Union against its will, neither it can be forced to withdraw from the European Union against its will”.[7]  Since the Member State had “freely and voluntarily committed” to the values of the EU,[8] then it should be allowed freely and voluntarily to withdraw from the EU.  Following this, the Member State could be free to decide whether it wished to revoke the withdrawal agreement. A revocation of the withdrawal agreement before that agreement has entered into force preserves the UK’s national sovereignty. By expanding the notion of ‘intention’, the CJEU covered circumstances in which the withdrawing Member State may have changed its initial intention. The withdrawal procedure is a fluid concept that may change over time. This was highlighted by the CJEU as it interpreted such intention as “neither definitive nor irrevocable”.[9] The rationale was that “if the notification of the intention to withdraw were to lead inevitably to the withdrawal of the Member State concerned from the European Union at the end of the period laid down in Article 50(3) TEU, that Member State could be forced to leave the European Union despite its wish”.[10] This would have been detrimental to national sovereignty.

By underlying the importance of the “will” of the withdrawing Member State, the CJEU established the crucial role of national sovereignty in the EU. In fact, the CJEU followed a bottom-to-top approach in reaching its judgement. Union citizens were the starting point, as it recognised the “considerable impact” that the withdrawal could have on their rights,[11] and the EU was the ending point.  The States expressed the people’s will. In the end, as it was noted by the CJEU, “the European Union is composed of States”[12] and this should be respected.

It is sensible to argue that this reasoning protected the national sovereignty of the Member States. If the CJEU had decided that the withdrawing Member State could revoke the withdrawal notification only with the consent of the Commission and the Council, this would have significantly undermined their national sovereignty. The argument raised by the Commission and the Council against the unilateral revocation of the withdrawal agreement was rational. Counter-arguing the point raised in favour of unilateral revocation, the Commission and the Council raised the issue of abuse of the process. As it was noted by the CJEU, the Commission and the Council argued that the withdrawing Member States could use the right of revocation before the end of the period laid down and renew the procedure with a new notification in order to negotiate a better agreement for themselves. By dismissing this argument, the CJEU enshrined the intention of the Member States to ensure the unilateral nature of the withdrawal decision. In fact, as it was noted, the risk of abuse was discussed during the drafting of the clause but it was, in the end, rejected by the drafters.[13]

Brexit judgment: the consolidation of relative EU supremacy

The judgement has constitutional importance because it also discussed indirectly the notion of supremacy. Supremacy of EU law over national law has always been critical in the Eurosceptic discourse of how the EU has diluted national sovereignty. According to Eurosceptics, the Member States were forced to apply norms which may be against their national interests, thus limiting their national sovereignty. The concerns expressed by the Eurosceptics may be supported by the initial constitutional judgments held by the CJEU in which it had emphasised that EU law would reign supreme over national law.

In its first constitutional judgements the CJEU was in favour of an absolute supremacy of EU law over national law. In particular in Van Gend en Loos, the CJEU stated that “the [EU] constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights”.[14] Complementing this idea of new legal order, in Costa v ENEL the CJEU established the EU’s supremacy by holding that “the laws stemming from the Treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions”.[15]  Going a step further, the CJEU in Internationale Hadelsgesellschaft held that the validity of European laws could not be affected by the norms within the Member States.[16] The notion of supremacy was codified in the Treaty of Lisbon with Declaration 17 in which it was stated that “the Treaties and he law adopted by the Union on the basis of the Treaties have primacy over the law of Member States”.[17]

Nevertheless the CJEU on Brexit, appeared to move away from the initial absolute scope of supremacy. Although it stated that the EU “established, unlike ordinary international treaties, a new legal order … which the Member States thereof have limited their sovereign rights”,[18] as it had previously held in Costa v ENEL, the reasoning of the CJEU suggested that EU law would be supreme for as long the Member States “voluntarily committed” to it.[19] This was evident in the statement of the CJEU that “EU law is thus based on the fundamental premise that each Member State shares with all the other Member States, and recognises that those Member States share with it, those same values”.[20] Having as a premise the “will” of the States, since the “European Union is composed of States”, it could be argued that the CJEU is gradually moving away from its initial firm stance that EU law was absolutely supreme over national law.  Therefore, the supremacy of EU law is depended on the “will” of its Member States.

The idea that supremacy of EU law was relative and limited to national sovereignty, was supported by the approach that the national constitutional courts have followed over the years. It would be interesting to focus on three Member States in order to comprehend how the constitutional courts of the Member States have interpreted the supremacy of EU law

Germany

Although the German Constitution allows Germany to transfer its sovereign powers to the EU,[21] the German Constitutional Court has been significantly active in questioning the supremacy of EU law. With respect to the fundamental rights, the German Constitutional Court in the case of Solange I held that “in a conflict of norms, the guarantee of fundamental rights in the Constitution prevails so long the competent organs of the [Union] have not removed the conflict of norms in accordance with the Treaty mechanism”.[22] The Constitutional court has imposed limits on EU’s supremacy, since the court emphasised that so long as the EU had not developed equivalent human rights as the German Constitution, court would ensure that these rights took precedence. Even when the EU has developed substantive human rights, the German Constitutional Court in the case of Solange II[23] promised not to challenge the supremacy of EU law ‘so long as’ the latter guaranteed substantially similar fundamental rights to those recognised by the German constitution.

In subsequent judgements, the supremacy of EU law was subject to the ultra vires test. In Maastricht case,[24] the court held that if EU law was ultra vires and EU law was made without competence, then the German Constitutional Court would disapply it. In a more recent case, the German Constitutional Court reiterated the ultra vires limit of EU’s supremacy but it also articulated another one limitation. According to the court, EU law must respect the national constitutional identity, and the EU could not intervene in these areas.[25]

The role of the German Constitutional court in interpreting the supremacy of EU law over national law is indicative that the Member States could retain their national sovereignty even if they acceded the EU. It is important to highlight that the German Constitutional Court has not found in any of its judgements that the EU has acted ultra vires or that EU law should be disapplied. Nevertheless, the importance of these national decisions lie to the fact that the Member States had the power to challenge the supremacy of EU law.

United Kingdom

In the UK, national sovereignty is preserved by the Parliament since any legislation enacted by the Parliament is considered to be the highest source of legal and constitutional authority.[26] This means that the so-called Parliamentary sovereignty conflicts with the EU’s supremacy, since there is a conflict of hierarchy. If the Parliamentary Acts are the highest legal authorities, this would mean that they would take precedence over EU law.

This was resolved with the enactment of the European Communities Act 1972 in which it was provided that any legislation that was enacted prior to UK’s accession to the EU or it will be enacted post accession will be construed in accordance with EU law. According to the European Communities Act 1972, EU law would become part of the British law. This means that in a conflict between EU law and British law, EU law would be prevail. In Factortame (No2), Lord Bridge explained that “whatever limitation on its sovereignty Parliament accepted when it enacted the European Communities Act 1972 was entirely voluntary”. [27]  Therefore, EU law enjoys superior status over national law, simply because the British Parliament permits it to enjoy that status.

According to Dicey, the Parliamentary sovereignty holds that Parliament means could not only enact any legislation, it could amend and repeal that legislation.[28] As it was provided by the European Union Act 2011, EU law is supreme by virtue of a Parliamentary Act and it could be repealed by another Act. The European Union (Withdrawal) Act 2018, which deals with the withdrawal of the UK from the EU, reflects the argument that the UK’s national sovereignty has never been lost. The UK has permitted EU’s supremacy, and it was the UK which retained the power to take it back.

Czech Republic

The example of the Czech Republic is unique in the EU. This is because the Czech Constitutional Court declared a judgement of the CJEU ultra vires and refused to apply it. Although the Czech Republic accepted the supremacy of EU law in Article 10 of the Czech Constitution, the Czech Constitutional Court has made it clear that EU secondary law must be consistent with the EU Treaties and the Czech Constitution.[29]  It has also made it clear that in case there was conflict between Czech constitution and EU law, then EU norms would not be binding in the Czech Republic.[30] Despite the fact that the academic literature explained the decision of the Czech Constitutional Court as the result of the tensions that existed between the Czech Constitutional Court and the Supreme Administrative Court, the outcome was that national sovereignty remained on the hands of the Member States.

The examples of Germany, the UK and the Czech Republic supports the argument that EU law prevails over national law only with the consent of its Member States.  This is the reason that the judgement of the CJEU on Brexit could be considered as a constitutional turning point since it accepted implicitly the relative scope of supremacy. Consequently, due to national supremacy, the supremacy of EU law is granted and limited by national constitutional law.

The institutional dimension of national sovereignty

As it has been discussed above, the judgement of the CJEU on Brexit lied on the premise that EU is composed of States and their “will” must be respected. This implied that the Member States were the ones who ultimately governed the EU. Thus, if the Member States were not only the ones who could limit the supremacy of EU law but at the same time, the ones who could take the decisions for the EU, then the Eurosceptic argumentation for a lost national sovereignty may be dismissed.

In accordance with the Lisbon Treaty, there are 7 institutions: European Council, Commission, Council, European Parliament, Court of Justice of the European Union, European Central Bank and the Court of Auditors.  In this article, we will focus only on European Council, European Parliament, Council

The European Commission is the supranational institution, which promotes the general interest of the Union. Most European legislative acts commenced with its proposal.

The Council is an intergovernmental body and it consists of a representative of each Member State at ministerial level who is authorised to commit the government of that State. It has co-legislative powers with the European Parliament since legislative proposals from the Commission need to be approved by the Council.

The European Parliament is composed of representatives of the EU’s citizens and it has legislative powers.

The European Council is the inter-governmental institution. It is composed of the Heads of the Member States. It is the EU’s decision-making body as it provides the necessary impetus for the development of the EU and also defines the general political directions and priorities of the EU. It has executive powers.

Based on this, it could be argued that the Member States are the ones that govern the EU since it is the European Council which makes executive decisions. The European Commission, the European Parliament and Council have legislative powers. Consequently, it may be deduced that the Members of the EU ultimately govern the EU. Given that the States govern the EU, it is logical to conclude that the national sovereignty of the Member States which is expressed through their Head of State influences the development of the EU.

Therefore, it seems that the problem of Euroscepticism lies in the fact that this inter-State cooperation may have been considered as a limitation to national sovereignty: the States are not entirely free to decide for their national best interest but instead are required to cooperate through compromises. As it was highlighted by Geert Wilders, the Dutch parliamentary leader of the Partij voor de Vrijheid (“Party for Freedom”), at the Ambrosetti conference “[t]he EU is characterized by cultural relativism and enmity towards patriotism. But patriotism is not a dangerous threat; it is something to be proud of. It means defending a nation’ sovereignty and independence, and not selling it out in shabby compromises to the EU and its bureaucrats”.[31]

However, it is questionable how compromises and cooperation are indeed a limitation to national sovereignty. In the era of globalisation, consensus is a necessary ingredient for reducing political tensions. Compromise is not a weakness, not even a humiliating act. Glorious old eras were linked with humiliating defeats simply because governments were not prepared to compromise. What Eurosceptics who support Brexit tend to forget is that withdrawing from the EU, does not mean that the other sovereign States will make agreements with the UK that will be only solely beneficial to the UK. Mutual benefits are a pre-requisite. Consequently, in order to achieve these mutual benefits, the UK will have to “limit” its sovereignty.

Nevertheless, it is reasonable to ask whether the EU is empowered constitutionally to impose its policies over its Members. The recent refugee crisis indicated the pathologies of the EU since the Visegrad group (Poland, Hungary, the Czech Republic and Slovakia) refused to apply the Council’s Decision on allocation of refugees. This was highlighted in the Joined cases of Slovak Republic and Hungary v Council, in which the CJEU noted that the lack of cooperation between the States to resolve the crisis.[32]

Although, it is still possible for the EU to impose sanctions on a Member State which refuses to follow its policies, by triggering Article 7 TEU, this provision is significantly limited. Importantly, it does not allow the EU to terminate the membership of a State and there are also many constitutional safeguards so that it could not be abused. In particular, this provision grants limited power to the EU since the violation must be classified as “a serious and persistent breach” and a high majority is required in order to impose the sanctions. Moreover, the decision for sanctions is taken by the European Council, the inter-governmental body, and not the Commission, the supranational institution. This is significantly important because it is the other sovereign States that could limit the national sovereignty of another Member State and not the Commission. Therefore, it could be argued that even within the EU, the legal powers of the other Member States to limit the national sovereignty of its Members is limited.

Conclusion

In conclusion, the Eurosceptic discourse on lost national sovereignty is not an accurate reflection of how the EU functions. It would be misleading to believe that States lose their national sovereignty when they accede to the EU. National sovereignty is always present. Brexit is tangible proof that a Member State, if not satisfied with the EU, can leave and develop its own policy. However, the admirers of national sovereignty seem to forget something fundamental. Compromise does not mean retreat from national sovereignty. Compromise is the ultimate protection of national sovereignty. The EU is an international organisation which bridges the differences between its Member States. Brexit shall not booster the national sovereignty of the UK. The UK will still be forced to enter into numerous bilateral agreements in which compromise will be the key to achieving the best possible results.

Colonisation is over.


[1] Sofia Vasilopoulou, Varieties of Euroscepticism: The Case of the European Extreme Right’ (2009) 5(1) JCER 3.

[2] Aleks Szczerbiak and Paul Taggart (eds.), “Opposing Europe? The Comparative Party Politics of Euroscepticism Volume 1 Case Studies and Country Surveys,” (Oxford and New York: Oxford University Press 2008), pp. 3.

[3] Case C-621/18 Wightman and others v Secretary of State for Exiting the European Union ECLI:EU:C:2018:999.

[4] ibid para [51].

[5] European Council, Informal meeting of the 27 heads of state or government, 29 June 2016 www.consilium.europa.eu/en/meetings/european-council/2016/06/28-29/#

[6] Brexit Judgement (n.3) para [59].

[7] ibid para [65].

[8] ibid para [63].

[9] ibid para [49].

[10] ibid para [66].

[11] ibid para [64].

[12] ibid para [63].

[13] ibid para [68].

[14] Case 26/62 Van Gend en Loos v Netherlands Inland Revenue Administration [1963] ECR 1, 12.

[15] Case 6/64 Costa v ENEL [1964] ECR 585, 594.

[16] Case 11/70 Internationale Handelsgesellschaft mbH v Einfur- und Vorratsstelle fur Getreide und Futtermittel [1970] ECR 1125.

[17] Declaration 17

[18] Brexit Judgment (n.3) para [44].

[19] ibid para [63].

[20] ibid.

[21] Article 23.1 Basic Law.

[22] Solange I (Re Internationale Handelsgesesellschaft) [1974] 2 CMRL 540, 551.

[23] Solange II (Re Wunsche Handelsgesellschaft) [1987] 3 CMLR 225, 265.

[24] Maastricht Decision [1994] 1 CMLR 57, 105; Honeywell Decision, 2 BvR 2661/06 (2010).

[25] Lisbon Judgement, Bundesverfassungsgericht 2 BvE 2/08 (2009).

[26] Roger Masterman and Colin Murray, Exploring Constitutional and Administrative Law, (2013) Pearson Education Limited p.110

[27] R v Secretary of State for Transport, ex parte Factortame (No.2) [1991] 1 AC 603, 659.

[28] A. V. Dicey, Introduction to the Study of the Law of the Constitution (Indianapolis: Liberty Fund, 1982) pp. 3-4.

[29] PI US 50/04.

[30] PI US 19/08.

[31] The Future Belongs to the Europe of Sovereign Nations on 4 September 2017 < https://www.newenglishreview.org/blog_direct_link.cfm?blog_id=66571>

[32] Joined Cases C-643 and 647/15 Slovak Republic and Hungary v Council of the European Union ECLI:EU:C:2017:631.

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